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THIRD
SECTION
CASE OF
GOROBET v. MOLDOVA
(Application
no. 30951/10)
JUDGMENT
STRASBOURG
11 October
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 Gorobet v. Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi, judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 20 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30951/10)
against the Republic of Moldova lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Moldovan national, Mr Iurie Gorobet (“the applicant”), on
17 May 2010.
2. The
applicant was represented by Mr I. Cebotari, a lawyer practising in
Bălţi. The Moldovan Government
(“the Government”) were represented by their Agent, Mr V.
Grosu.
3. The
applicant alleged, in particular, that his detention in a
psychiatric hospital had been unlawful and contended that there had
been a violation of Article 5 § 1 of the Convention.
He also complained that he had been subjected to forced psychiatric
treatment, in breach of Article 3 of the Convention.
- On
30 August 2010 the Court decided to give notice
of the application to the Government. 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 1966 and lives in
Costeşti.
- On
25 February 2008 at approximately 9 p.m. the applicant was visited at
his home by two police officers, who invited him to the police
station. The applicant refused in the beginning, but after being
threatened with criminal prosecution for refusing to comply with
legitimate police orders, he conceded.
- Instead
of being taken to the police station, the applicant was taken by the
two police officers to the psychiatric hospital in Bălţi,
where he was hospitalised against his will for a period of forty-one
days.
- During
the first few days the applicant was kept in a room with persons
suffering from serious mental disorders, some of whom could not
attend to their basic needs and who intimidated him on a regular
basis. He requested on several occasions that he be allowed to
contact a lawyer or his family, but to no avail. Later he was
transferred to a ward with patients with less serious conditions.
- Throughout
his stay in the psychiatric hospital the applicant was administered
injections which provoked in him a state similar to paralysis and as
a result of which he lost consciousness. He was also forced to take a
large amount of tablets on a daily basis. He attempted to refuse to
take medication; however, he changed his mind after being threatened
with a straitjacket and with being tied to his bed. According to the
medical records from the hospital, the applicant received treatment
against paranoid depression. The records do not contain any
information concerning any risks for the applicant or for other
persons posed by the applicant’s condition. The records contain
a consent form filled in with the applicant’s name and
allegedly signed by him. The applicant denied having signed such a
form and submitted that it was a forgery which first appeared in his
medical file after the criminal investigation had been initiated (see
paragraph 13 below).
- After
being released from hospital, the applicant made official inquiries
with the Rascani District Court to find out whether it had authorised
his forced hospitalisation. In two letters dated 27 July and
26 December 2008, the Rascani District Court denied having ever
received any official request for the applicant’s involuntary
confinement in a psychiatric hospital.
- On 13 June 2008 the applicant obtained from the
Rascani hospital two medical reports confirming that he had not been
addicted to alcohol or drugs, and that he had not suffered from any
psychiatric disorders. The report concerning the applicant’s
mental health was issued following his examination by a commission of
eight doctors and was signed, inter alia, by a psychiatrist,
A.G.
- The
applicant also requested and obtained from his local hospital a
document stating that he had not been registered as a person
suffering from mental disorders before 25 February 2008.
- On
29 August 2008 the applicant lodged a criminal complaint with the
Prosecutor’s Office, asking it to investigate his case and to
prosecute the persons responsible for his illegal forced
hospitalisation in a psychiatric hospital and for subjecting him to
medical treatment against his will. He described in detail the
conditions of his hospitalisation and the medical treatment which he
had received, and argued that it amounted to inhuman and degrading
treatment. He submitted that his hospitalisation had been possible
owing to an official document referring him for compulsory treatment
issued by Doctor A.G. from the Rascani hospital. Doctor A.G. had
issued that document without ever having seen the applicant in
person. The document was not dated, contained the wrong social
security number as regards the applicant, and stated that he was in
possession of medical insurance, which was not true because he was
not in fact medically insured.
- In the course of the investigation, the Prosecutor’s
Office heard the applicant’s family doctor, who stated that
before the events of 25 February 2008 she had been told by
the applicant’s sister and mother that they had often had
disputes with him and that he had threatened them with violence and
even with death, and in general displayed very strange behaviour. The
family doctor told the applicant’s mother to see the
psychiatrist A.G. from the Rascani hospital. In February 2008 the
applicant’s mother told the family doctor that she had an
official document from A.G. referring the applicant for psychiatric
treatment. The family doctor told the applicant’s mother that
that document was sufficient to compulsorily confine the applicant in
a psychiatric hospital.
- The applicant’s mother told the prosecutors that
starting in December 2007, when the applicant had returned from a
long stay in the Russian Federation where he had been employed, he
began to have drinking problems and to behave inappropriately. It was
the applicant’s sister who went to the Rascani hospital and
obtained from A.G. an official document referring the applicant for
psychiatric treatment.
- The applicant’s sister told the prosecutors that
the applicant had drinking problems and exhibited very bad behaviour.
She saw A.G. from the Rascani hospital and asked him for an official
document referring the applicant for psychiatric treatment. A.G.
refused to issue such a document without first seeing the applicant.
Then she started crying and A.G. conceded. He provided her with the
document and told her to contact the family doctor in order to
organise the hospitalisation.
- The two police officers who transported the applicant
to the Bălţi psychiatric hospital stated that on 25
February 2008 they had been contacted by the applicant’s family
doctor, who presented them with an official document referring the
applicant for treatment. They took the applicant directly to the
Bălţi psychiatric hospital and left him there.
- The Prosecutor’s Office also heard psychiatrist
A.G., who declared that at the beginning of February 2008 he had been
visited by a woman complaining about the aggressive behaviour of her
brother, the applicant. Later the applicant was brought in for
consultation by a police officer (one of the police officers who had
arrested the applicant) and, after a brief conversation, the doctor
determined that the applicant was suffering from a delusional belief
that his relatives were intending to sell his house. The doctor
considered that the applicant represented a risk to his relatives and
ordered his hospitalisation. The police officer took the applicant to
the Bălţi psychiatric hospital. A.G. was asked why he had
issued the applicant with a document in June 2008 stating that he was
mentally healthy. A.G. answered that he had issued the applicant with
such a document because the applicant had told him that he was
healthy and had never received psychiatric treatment.
- During
the investigation, the Prosecutor’s Office requested the
applicant to undergo psychiatric evaluation, in order to determine
whether he was actually suffering from the mental disorder which had
led to his hospitalisation. The applicant agreed in the beginning;
however, he changed his mind after learning that he had to commit
himself for a three-week long in-patient examination in a psychiatric
hospital.
- On
12 June 2009 the Prosecutor’s Office dismissed the applicant’s
criminal complaint on the ground that his hospitalisation had been
duly ordered by Doctor A.G., and that as a result of the applicant’s
refusal to undergo a medical examination, it was impossible to
determine whether the diagnosis as established by Doctor A.G. had
been correct or not. In so far as the consent form allegedly signed
by the applicant is concerned, it appears that it was disregarded and
that no one during the proceedings questioned the fact that the
applicant had been hospitalised against his will.
- The
applicant appealed against the above decision to the hierarchically
superior Prosecutor’s Office; however, his appeal was dismissed
on 13 July 2009.
- On
23 July 2009 the applicant appealed to the Rascani District Court. He
argued, inter alia, that the same psychiatrist, A.G., had
issued him in June 2008 with a medical report stating that he did not
suffer from any mental disorders and that he had not been registered
as a mentally ill patient with his local hospital before 25 February
2008. He also submitted that there had been no court orders
committing him to a psychiatric hospital against his will, and that
his hospitalisation had therefore been unlawful and arbitrary.
- On
23 November 2009 the Rascani District Court dismissed the applicant’s
appeal on the ground that he had refused to be hospitalised for an
in-patient examination.
- After
the communication of the present case to the Government, new criminal
proceedings were opened by the General Prosecutor’s Office on
23 April 2010 concerning the alleged unlawful actions of the
Bălţi psychiatric hospital’s medical personnel in
respect of the applicant. That investigation is still pending. It
does not appear from the material submitted by the Government that
the investigation had progressed in any way between April 2010 and
June 2011, when the Government submitted their final observations in
the case.
II. RELEVANT DOMESTIC LAW
- Section
11 of the Law on Psychiatric Assistance (“the Law”)
provides that a person can be hospitalised in a
psychiatric hospital for treatment against his or her will only in
accordance with the provisions of the Criminal Code or in accordance
with the provisions of section 28 of that Law. In both cases, except
for reasons of urgency, the hospitalisation must be ordered on the
basis of a decision taken by a commission of psychiatrists.
- Section
28 of the Law sets out the reasons which can be relied upon for
hospitalising a person for treatment against his or her will. It
provides that a person suffering from a mental disorder can be
hospitalised against his or her will, before a court judgment for
that purpose has been issued, when the mental disorder is
particularly serious and constitutes a risk to himself or herself or
to others; when the mental disorder is of such a nature that the
person is incapable of meeting his or her vital needs alone; or if
left untreated, the mental disorder could cause serious harm to the
health of the individual concerned.
- Pursuant
to section 32 of the Law, compulsory hospitalisation for treatment of
a person in accordance with section 28 must be decided by a court.
The hospital must apply to the court for permission, indicating in
the application the reasons for which hospitalisation is sought and
attaching a copy of the decision of a commission of psychiatrists.
Pursuant to section 33, the court examining the application must take
a decision within three days from the date on which the application
was lodged, and the person concerned has the right to participate in
the hearing. If the person’s condition is serious and he or she
cannot come to the court, the judge is obliged to hold the hearing at
the hospital. The judgment issued at the end of the hearing
constitutes the basis for compulsory hospitalisation.
- Section
39 of the Law provides, inter alia,
that a patient hospitalised in a psychiatric hospital with his
consent can leave the hospital upon his or her request. On the other
hand, a patient hospitalised against his or her will can leave the
hospital only upon the decision of a commission of psychiatrists or
on the basis of a court judgment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained under Article 5 § 1 of the Convention that
his detention in the psychiatric hospital had been arbitrary. Article
5 § 1 reads as follows:
“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;
(b) the lawful arrest or detention of a
person for non-compliance with the lawful order of a court or in
order to secure the fulfilment of any obligation 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;
(d) the detention of a minor by lawful order
for the purpose of educational supervision or his lawful detention
for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.”
A. Admissibility
- The
Government submitted that there had been a failure to exhaust
domestic remedies. They argued in the first place that the applicant
could have complained to the Prosecutor’s Office while in
detention about his alleged unlawful detention, and that in any
event, the applicant’s complaint was premature because the
domestic authorities had not had a chance to conclude the examination
of the new criminal proceedings opened on 23 April 2010.
- The
applicant disagreed with the Government and argued that the
theoretical possibility of complaining to a prosecutor while in
detention did not exist in practice. His telephone had been taken
away from him upon hospitalisation, and any attempts to object to or
question the lawfulness of his detention were reprimanded,
accompanied by threats of being tied to his bed or put into a
straitjacket.
- The
Court is not persuaded that the applicant had any available remedies
while he was being detained in the Bălţi psychiatric
hospital. In the first place, judging by the manner in which the
applicant was hospitalised and the extent to which the procedure
prescribed by law was observed by the hospital, the Court is not
convinced that he would have been allowed to send any complaints to
the Prosecutor’s Office. In any event, the Government have not
shown any examples of anyone having ever successfully complained from
a psychiatric hospital about his or her detention. However, even
assuming that the applicant would have managed to submit a complaint
to the Prosecutor’s Office, the Court is not persuaded that his
complaint would have had any chances of success. In this regard, the
Court notes that the Prosecutor’s Office had ample opportunity
to examine the applicant’s complaints after his release, and
that on 12 June 2009 it dismissed those complaints.
- As
to the Government’s submission that the present application was
premature in view of the ongoing domestic criminal proceedings, the
Court notes that the Moldovan authorities had ample opportunity to
investigate the applicant’s complaint. The opening of new
criminal proceedings after the communication of the present case to
the Government is not a reason to consider the present application
premature; moreover, the new criminal proceedings have not progressed
in any way since their initiation.
- In
such circumstances, the Court considers that the applicant’s
complaint under Article 5 cannot be declared inadmissible for
non-exhaustion of domestic remedies. 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
- The
applicant submitted that he had been hospitalised against his will
and in breach of Article 5 § 1 of the Convention. The Government
submitted that they could not make any comments in respect of this
complaint until after the conclusion of the new criminal
investigation which had been opened after the communication to them
of the present case.
- The
Court notes that Article 5 § 1 of the Convention contains an
exhaustive list of permissible grounds for deprivation of liberty set
out in sub-paragraphs (a) to (f). Consequently, no deprivation of
liberty will be lawful unless it falls within one of the grounds set
out in those sub-paragraphs (see Witold Litwa v. Poland,
no. 26629/95, § 49, ECHR 2000 III).
- Although
the parties did not refer to any grounds for the applicant’s
detention under Article 5 § 1, it is implicit from the
Government’s general position that the applicant’s
detention fell under Article 5 § 1 (e). The Court sees no reason
to hold otherwise. It must accordingly ascertain whether or not the
applicant’s detention was justified under sub-paragraph (e) of
Article 5 § 1 of the Convention.
- The Court observes that in its judgment in the case of
Guzzardi v. Italy (6 November 1980, § 98, Series A
no. 39), it explained the reason for the existence of the exception
to the right to liberty set out in sub-paragraph (e) as being to make
provision for the detention of vulnerable groups for their own
protection and/or for the protection of others.
- “Persons
of unsound mind” are the vulnerable group concerned in the
present case. The Court reiterates that an individual cannot be
considered to be “of unsound mind” for the purposes of
Article 5 § 1 and deprived of his liberty unless the following
three minimum conditions are satisfied: he must be reliably shown to
be of unsound mind; the mental disorder must be of a kind or degree
warranting compulsory confinement; and the validity of continued
confinement depends upon the persistence of such a disorder (see
Luberti v. Italy, 23 February 1984, § 27, Series A no. 75
and David v. Moldova, no. 41578/05, § 39, 27 November
2007).
- The Court notes in the first place that the procedure
for the applicant’s compulsory treatment as established by the
Moldovan legislation in force at the time was completely disregarded.
In particular, it notes that in accordance with
section 32 of the Law on Psychiatric Assistance,
compulsory hospitalisation for treatment must be decided by a court
(see paragraph 27 above). The hospital concerned was under an
obligation to apply to a court for permission, indicating in the
application the reasons for which the hospitalisation was sought and
attaching a copy of the decision of a commission of psychiatrists.
None of the above legal requirements was complied with in the present
case, and the applicant was subjected to confinement and medical
treatment in circumstances of complete arbitrariness. This finding
alone would have been sufficient for the Court to consider that there
has been a breach of Article 5 § 1 of the Convention in the
present case. However, for purposes of convenience in examining the
applicant’s complaint under Article 3 of the Convention, the
Court will also examine whether the applicant has been reliably shown
to have been suffering from a mental disorder of a kind and degree
warranting compulsory confinement.
- The
Court notes that according to the Government and to the findings of
the Moldovan prosecutors, the applicant was hospitalised against his
will on the basis of an official document referring him for
psychiatric medical treatment, which was issued by the psychiatrist
A.G. from the Rascani hospital. In reaching this conclusion, they
relied on the statements made by Doctor A.G., who submitted that he
had seen the applicant on 25 February 2008, when the latter was
brought to his office by the two police officers who had arrested him
on the same date (see paragraph 18 above). The Court has serious
reservations about the truthfulness of this statement, since Doctor
A.G.’s account was not confirmed by any of the other persons
questioned. In particular, the police officers who had arrested the
applicant on the evening of 25 February 2008 stated that they had
taken him directly to the Bălţi psychiatric hospital (see
paragraph 17 above). The applicant’s family doctor submitted
that it had been the applicant’s sister who had obtained the
document from Doctor A.G. (see paragraph 14 above). The applicant’s
sister submitted that Doctor A.G. had given her the document without
seeing the applicant (see paragraph 16 above). Moreover, Doctor
A.G.’s account of the events is inconsistent with his own
actions, namely with the fact that only two months after the
applicant’s release from the Bălţi psychiatric
hospital, he issued him with a report confirming his mental health,
without making any note that a mere two months earlier the applicant
had been hospitalised in a psychiatric institution at his (Doctor
A.G.’s) own initiative (see paragraph 11 above).
- In such circumstances, the Court cannot but conclude
that at the time of the applicant’s forced hospitalisation
there existed no expert opinion at all from a doctor concerning his
state of health or the need for his compulsory confinement in a
medical institution. Accordingly, it has not reliably been shown by
the Government that the applicant was of unsound mind prior to his
hospitalisation. It is true that after his confinement in the Bălţi
psychiatric hospital he was diagnosed with paranoid depression by the
doctors treating him; however, it was not argued by the Government
that those records contained information according to which the
applicant presented any risk to himself or to other persons, and that
therefore his mental disorder was of a kind or degree warranting
compulsory confinement.
- In
the light of the above, the Court considers that the applicant’s
compulsory confinement against his will in the Bălţi
psychiatric hospital did not fall within the ground set out in
sub-paragraph (e) of Article 5 § 1 and thus was unlawful and
arbitrary. Accordingly, there has been a violation of Article 5 §
1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that his subjection to
forced medical treatment in a psychiatric hospital amounted to
inhuman and degrading treatment, contrary to Article 3 of the
Convention, which 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
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
- The
applicant insisted that he was not mentally ill and argued that never
before 25 February 2008 had he been diagnosed as suffering from any
psychiatric diseases. Moreover, in June 2008 he was examined by a
commission of doctors, who had concluded that he was healthy. The
applicant submitted that he had unlawfully been subjected to
unnecessary psychiatric medical treatment, and that such treatment
had caused him severe suffering amounting to inhuman and degrading
treatment. His confinement had been arbitrary because it had been
ordered without any prior medical consultation.
- The
Government submitted that the complaint was manifestly ill-founded.
They argued that the applicant’s confinement had been necessary
because he was mentally ill, a conclusion shared by the doctors from
the Bălţi psychiatric hospital. The applicant had failed to
adduce evidence proving his mental health and had refused to submit
to psychiatric evaluation.
- As
the Court has held on many occasions, Article 3 of the Convention
enshrines one of the most fundamental values of a 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 Labita v. Italy [GC], no.
26772/95, § 119, ECHR 2000-IV).
- According
to the Court’s well-established case-law, ill-treatment must
attain a minimum level of severity if it is to fall within the scope
of Article 3. The assessment of this minimum level of severity
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,
inter alia, Price v. the United Kingdom, no. 33394/96,
§ 24, ECHR 2001-VII; Mouisel v. France, no. 67263/01,
§ 37, ECHR 2002-IX; and Naumenko v. Ukraine,
no. 42023/98, § 108, 10 February 2004). Allegations of
ill-treatment must be supported by appropriate evidence (see, mutatis
mutandis, Klaas v. Germany, 22 September 1993, §
30, Series A no. 269). To assess this evidence, the Court adopts the
standard of proof “beyond reasonable doubt” but adds that
such proof may follow from the coexistence of sufficiently strong,
clear and concordant inferences, or of similar unrebutted
presumptions of fact (see Ireland v. the United Kingdom, 18
January 1978, § 161 in fine, Series A no. 25, and Labita,
cited above, § 121).
- With
respect to medical interventions to which a detained person is
subjected against his or her will the Court has held that a measure
which is of therapeutic necessity from the point of view of
established principles of medicine cannot in principle be regarded as
inhuman and degrading (see, in particular, Herczegfalvy v.
Austria, 24 September 1992, § 82, Series A no. 244,
and Naumenko, cited above, § 112). The Court must
nevertheless satisfy itself that a medical necessity has been
convincingly shown to exist and that procedural guarantees for the
decision exist and are complied with (see Nevmerzhitsky v.
Ukraine, no. 54825/00, § 94, ECHR 2005-II).
- The
applicant argued that his confinement and forced psychiatric
treatment in the Bălţi psychiatric hospital caused him
severe mental suffering amounting to inhuman and degrading treatment.
In the circumstances of the present case, the Court sees no reasons
to disagree with the applicant and notes that no medical necessity to
subject the applicant to psychiatric treatment has been shown to
exist and that his subjecting to psychiatric treatment was unlawful
and arbitrary (see paragraphs 41 and 42 above). Moreover, the Court
notes the considerable duration of the medical treatment which lasted
for forty-one days and the fact that the applicant was not allowed
having contact with the outside world during his confinement (see
paragraph 8 above). In the Court’s view such unlawful and
arbitrary treatment was at the very least capable to arouse in the
applicant feelings of fear, anguish and inferiority. Accordingly, the
Court considers that the psychiatric treatment to which the applicant
was subjected could amount at least to degrading treatment within the
meaning of Article 3 of the Convention.
- Accordingly,
the Court concludes that there has been a violation of Article 3
of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the criminal proceedings initiated at his
request were unfair and that therefore, there had been a breach of
Article 6 of the Convention. The Court reiterates that the
Convention does not guarantee the right to pursue criminal
proceedings against third persons and that Article 6 does not apply
to proceedings aimed at instituting criminal proceedings against
third persons. It follows that this complaint is incompatible
ratione materiae
with the provisions of the Convention, within the meaning of Article
35 § 3 of the Convention, and must be rejected pursuant to
Article 35 § 4.
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 16,071 euros (EUR) in respect
of pecuniary damage. He argued that until December 2007 he had worked
in St Petersburg, Russia and had had a permanent income. If he had
not been forcefully hospitalised in the Bălţi psychiatric
hospital, he would have returned to work in Russia and, until the
date of the submission of his observations on just satisfaction,
would have earned EUR 16,071. The applicant also claimed EUR 20,000
in respect of non-pecuniary damage and argued that as a result of his
forced confinement and treatment, he had suffered serious harm to his
health and had become emotionally vulnerable.
- The
Government submitted that the applicant was not entitled to any
compensation for pecuniary damage because there was no causal link
between the breach found in the case and the alleged pecuniary damage
claimed by the applicant. As to the amount claimed for non-pecuniary
damage, the Government argued that it was excessively high.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, in view of the seriousness of the breaches found in
this case it considers it appropriate to award the applicant
the entire amount claimed in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 774 for the costs and
expenses incurred before the domestic courts and the Court, EUR 500
of which represented the lawyer’s fees and the rest secretarial
expenses.
- The
Government contested the amount claimed by the applicant and argued
that it was excessive
- The
Court notes that the applicant did not submit any evidence of having
paid his representative’s fees or that such fees were due.
Accordingly, regard being had to the information in its possession
and the above criteria, and the fact that the applicant clearly
incurred some secretarial expenses, the Court considers it reasonable
to award the applicant the sum of EUR 274 for incidental costs and
expenses.
C. Default interest
- The
Court considers it appropriate that any 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 the complaints under Article 5 § 1
and Article 3 of the Convention admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into
Moldovan lei at the rate applicable at the date of settlement:
(i) EUR
20,000 (twenty thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
274 (two hundred and seventy-four euros), plus any tax that may be
chargeable, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 11 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall Registrar President
