THIRD SECTION

CASE OF CIORAP v. THE REPUBLIC OF MOLDOVA (No. 3)

(Application no. 32896/07)

JUDGMENT

STRASBOURG

4 December 2012

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Ciorap v. the Republic of Moldova (no. 3),
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	Josep Casadevall, President,
	Alvina Gyulumyan,
	Corneliu Bîrsan,
	Ján Šikuta,
	Luis López Guerra,
	Nona Tsotsoria,
	Kristina Pardalos, judges,
	Johannes Silvis, substitute judge,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 13 November 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 32896/07) 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 Moldovan national, Mr Tudor Ciorap (“the applicant”), on 2 July 2007.
2.  The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
3.  The applicant alleged, in particular, that he had been detained in inhuman conditions, in violation of Article 3 of the Convention, and that his rights guaranteed under Articles 6, 8, 10 had been breached.
4.  On 6 January 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
5.  Following the resignation of Mr Mihai Poalelungi, the judge elected in respect of Moldova (Rule 6 of the Rules of Court), the President of the Chamber appointed Mr Ján Šikuta to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
6.  The applicant was born in 1965 and lives in Chişinău.
7.  The applicant has been detained, with short interruptions, since October 2000. In a previous case (see Ciorap v. Moldova, no. 12066/02, 19 June 2007) the Court found a violation of, inter alia, Article 3 in respect of the applicant’s conditions of detention and Article 8 in respect of the refusal of his requests for longer visits by his wife.
A.  Conditions of detention
8.  In the present application, the applicant complained about his conditions of detention, which according to him had not changed since the Court’s judgment of 2007 referred to above.
1.  Conditions of detention according to the applicant
9.  Allegedly as a result of the very poor prison conditions, he had become ill with severe thrombophlebitis, septic pneumonia and anaemia. He had often paid for various types of medication himself. He had officially been recognised as Category 2 disabled, with special dietary needs.
10.  The applicant also complained of the failure to provide him with food of a sufficient quantity and quality, as prescribed by the domestic regulations. In a letter to the governor of Prison no. 15 on 21 October 2008, the applicant asked to be informed whether he had been given any kind of meat, fish, butter or cheese since his arrival to that prison on 17 June 2008 and if so, in what quantities and on how many occasions. In its reply of 31 October 2008 the Prisons Department confirmed that he had not been given meat or butter since 17 June 2008, because the prison in which he was detained (Prison no. 15) had not received such products during the relevant period. In a letter from the Ministry of Justice dated 16 October 2008 the applicant was informed that he would receive additional products as prescribed by the doctors, such as milk, meat and fish. Other dairy products and eggs would be distributed “in accordance with availability”.
11.  The applicant also complained about the conditions of his detention during his frequent transfers from one prison to another and while being escorted to court hearings. In particular, he mentioned that when he had been escorted to a hearing, he had been away from his prison from 7-7.30 a.m. until 7-7.30 p.m., that is, he had left the prison and returned there before and after mealtimes. No food had been given throughout the day to those escorted to court hearings. Since he has had several hundred court hearings in recent years, he has been deprived of food on a regular basis. In order to allow detainees to receive some food on court days, the Prisons Department adopted Order no. 142d allowing relatives to provide food to those detainees who were taken to court on the relevant day. The applicant was informed by a letter dated 24 October 2008 that this order had subsequently been annulled. The applicant also complained that on court hearing days he had waited for hours for his trial in a very small cell with no access to natural light, no water and no access to a toilet.
12.  According to the applicant, the cells were infested with parasitic insects and rats and public funds were not fully used to ensure better conditions of detention. The applicant also complained of insufficient medical assistance, as confirmed by the many complaints he had made to various authorities.
13.  The applicant also instituted court proceedings claiming damages for inhuman conditions of detention. On 11 May 2007 the Buiucani District Court partly allowed the applicant’s claims and found a violation of his right not to be held in inhuman conditions of detention. The court awarded him 2,700 Moldovan lei (MDL, the equivalent of 162 euros (EUR) at the time). On 8 December 2008 the Chişinău Court of Appeal reduced that award to MDL 100 (EUR 7.58). The parties did not inform the Court of any appeal against that judgment.
2.  Conditions of detention according to the Government
14.  According to the Government, in prisons nos. 3 and 15 the applicant had been detained in cells with adequate living space that had been sufficiently lit, ventilated and heated. He had received three hot meals a day as prescribed by the applicable regulations, had regular access to showers and had his bed linen changed regularly.
15.  Food was provided to all the detainees, including those brought to court hearings, in which case food was reserved and distributed so as not to coincide with movement to and from the court hearings.
B.  Access to justice and effective remedies
16.  The applicant submitted that the Complaints Committee (“the Committee”) had not worked properly and in particular had not issued him with any decision in respect of his complaints. Without a decision from the Committee, his complaints could not be examined by the courts. The only replies which he had received from the Committee had referred to the forwarding of his complaint to the authority against which it had been directed. Some of his complaints concerned punishments imposed on him by the prison administration that he considered unlawful.
17.   Moreover, under the by-laws of the Committee, a detainee’s representative had the right to attend the Committee’s meeting when his or her complaint was discussed. However, the applicant and his representative had never been informed of any meeting concerning his numerous complaints lodged with the Committee. The applicant did not give any details with a view to identify the specific proceedings concerned by his complaint under Article 6 of the Convention. The case file contains several court decisions cancelling punishments applied to the applicant by the prison administration. According to the applicant, he was not always escorted to court hearings because the courts did not always order for him to be escorted to the hearings.
C.  Family visits
18.  The applicant has regularly asked to be allowed to be visited by his family (both short and extended visits), to which he is entitled as a convicted prisoner. These requests have been rejected.
19.  On 17 June 2008 the applicant was transferred to Prison no. 15, where he also asked to have extended family visits. He relied on the Court’s judgment of 19 June 2007 in the case of Ciorap, cited above.
20.  In reply to a complaint dated 8 July 2008, the Prisons Department informed the applicant on 21 July 2008 that as he was being held in Prison no. 15 as an “initial regime” prisoner, for the first nine months of his detention after conviction, he was not entitled to extended visits. The applicant was convicted for the last time on 29 December 2005.
21.  In a letter of 5 September 2008 the Chişinău Prosecutor’s Office reminded the applicant that he had been given permission to meet with his wife on four different occasions between 17 June and 22 August 2008 and that only extended visits were prohibited under the initial prison regime. The applicant was also reminded that the meeting room used for short visits did not have any physical barrier so that direct contact between the applicant and his visitors had been possible.
22.  The applicant complained to the investigating judge, asking to be allowed the same visiting hours as persons held in “normal detention”, as opposed to “initial detention”. On 5 December 2008 the investigating judge allowed his complaint, following which the applicant was allowed to be visited by his family.
23.  In parallel civil proceedings, on 31 January 2009 the Rîşcani District Court partly allowed the applicant’s claims and found, inter alia, a violation of his right under Article 8 of the Convention as a result of “the refusal to enforce the judgment of [the Court] of 19 June 2007”, since he had not been allowed family visits from June to December 2008. The court ordered the prison administration to allow the applicant to have family visits in the future.
24.  The applicant did not submit any information as to the subsequent progress of the proceedings in this case.
II.  RELEVANT DOMESTIC PRACTICE AND OTHER MATERIAL
25.  The Government enclosed with their observations copies of judgments in the cases of Drugaliov v. the Ministry of Internal Affairs and the Ministry of Finance; Gristiuc v. the Ministry of Finance and the Prisons Department; and Ciorap v. the Ministry of Finance, the Ministry of Internal Affairs and the Prosecutor General’s Office, all cases in which the applicants were awarded compensation for ill-treatment and/or inhuman conditions of detention.
26.  The relevant parts of the report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) concerning its visit to Moldova from 20 to 30 September 2004 read as follows (unofficial translation):
“83. Except in the Lipcani Re-education Colony for Minors, where the efforts made in this respect are to be highlighted, the quantity and quality of prisoners’ food everywhere is a source of deep concern. The delegation was overwhelmed with complaints about the lack of meat and dairy products. The findings of the delegation, regarding both the stocks of food and the menus, confirm the credibility of these complaints. The delegation’s observations also confirmed that in some places (Colonies 3 and 4) the food served was revolting and literally inedible (for example containing insects and parasites). This is hardly surprising given the generally bad state of the kitchens and their modest equipment.
The Moldovan authorities have always claimed financial difficulties in ensuring that prisoners receive adequate food. The Committee nevertheless insists that this is a basic requirement that the State must provide for persons in its care, and that nothing can absolve it of this responsibility. Failure to meet this obligation is all the more unacceptable as, under legislation, working prisoners in the establishments visited contribute to the cost of feeding themselves and their fellow-prisoners. ...”
27.  In its report for 2010 (page 142 et seq. – “Conditions of detention” chapter), the Centre for Human Rights in Moldova (“the Centre”, which is the Moldovan Ombudsman institution) found, inter alia, that:
“... [T]he Prisons Department informed the ombudsman that meat and fish products were provided [to detainees] whenever that was possible. At the same time, that authority stated that, owing to the difficult financial situation, during 2010 the detainees in Prison no. 17 in Rezina received 75% of the necessary meat products and 80% of fish products. In this connection, the Minister of Justice submitted information concerning the amount spent on food for detainees in 2010. This figure amounted to MDL 24.05 million, while the required sum for the same period of time was, according to the Ministry of Finance when presenting the draft Budget law, MDL 29.05 million. The daily amount spent on food for a detainee in 2010 was MDL 10.24 [approximately EUR 0.6], while the daily required sum was MDL 12.35. This fact was often cited by prison administrations as the reason for the impossibility of providing detainees with meat and fish. ...
...
Non-observance of the statutory living space (4 square metres) in the living blocks of the institution has become an unpleasant problem; it has transformed into a systemic deficiency of the prisons in the entire country. ...
The same situation was observed during a visit to Prison no. 13 in Chişinău on 9 September 2010. In some cells the living space was not proportionate to the number of detainees. ...”
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
28.  The applicant complained that the conditions of his detention had been inhuman, contrary to the requirements of Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A.  Admissibility
29.  The Government submitted that the applicant could not claim to be a victim of the alleged violation of Article 3 of the Convention because he had won several court cases against various State authorities. The domestic courts had acknowledged the violation of his rights and had also awarded him compensation. Moreover, he could claim compensation at any time from the domestic courts, and recent case-law confirmed the effectiveness of that remedy (see paragraph 25 above).
30.  The Court observes that it has already found a violation of Article 13 of the Convention on account of the lack of effective remedies in Moldova in respect of inhuman and degrading conditions of detention in the cases of Malai v. Moldova (no. 7101/06, §§ 45-46, 13 November 2008), I.D. v. Moldova (no. 47203/06, § 50, 30 November 2010) and Rotaru v. Moldova (no. 51216/06, § 47, 15 February 2011). It also observes that the remedy invoked by the Government (a court action claiming compensation) did not have a preventive effect in the sense of improving the conditions of the applicant’s detention, but only a compensatory effect (see, for instance, Holomiov v. Moldova, no. 30649/05, § 107, 7 November 2006, and Oprea v. Moldova, no. 38055/06, § 33, 21 December 2010). Therefore, it is not effective in the case of persons still detained in such conditions at the time of lodging their application with the Court, which is the applicant’s situation.
31.  Accordingly, the Government’s preliminary objection must be rejected.
32.  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
33.  The applicant referred to his description of the conditions of detention, in particular the substandard quantity and quality of food served, as well as the conditions in which he had had to wait for the hearings in the numerous court cases in which he was a party (see paragraphs 10-12 above).
34.  The Government submitted that in Prisons nos. 13 and 15 the applicant had been detained in appropriate conditions not amounting to treatment contrary to Article 3 of the Convention (see paragraphs 14 and 15 above).
35.  The Court notes that in the applicant’s own previous case (Ciorap, cited above, § 71) it has already found a violation of Article 3 of the Convention in respect of his conditions of detention in prison no. 13 up to the date of adoption of that judgment on 19 June 2007. As he continued to be detained in the same facility until 17 June 2008 and since no evidence has been adduced by the Government that the situation had significantly changed, the Court considers that there are no reasons to depart from the conclusions reached in Ciorap, cited above.
36.  Moreover, in respect of the quantity and quality of the food served in prison no. 15, the applicant submitted evidence that he had complained in very specific terms to the prison administration (see, for instance, paragraph 10 above). In reply, he was informed of the absence of meat and dairy products for four months in 2008 (see paragraph 10 above). While the absence of specific products from the menu does not, of itself, amount to treatment contrary to Article 3 of the Convention, it is to be noted that the nutritional tables and menus in prisons already represent the minimum of food as determined by the domestic authorities. Failure to provide even that minimum, and doing so for prolonged periods of time as in the present case, puts at risk the health of detainees (compare Rotaru v. Moldova, no. 51216/06, § 37, 15 February 2011) and is incompatible with the State’s obligations under Article 3 of the Convention.
37.  The Court thus considers that the hardship endured by the applicant during his detention at prison no. 13 between 2 July 2007 and 17 June 2008 (see paragraph 19 above), as well as for at least four months in prison no. 15, went beyond the unavoidable level of hardship inherent in detention and reached a threshold of severity contrary to Article 3 of the Convention. It also notes with concern that the present case concerns the persistence of prison conditions incompatible with the requirements of Article 3 of the Convention, despite the Court’s finding of a violation of that provision in the applicant’s previous case (Ciorap, cited above, § 119) and despite, as argued by the Government, the existence of domestic courts’ decisions similarly finding those conditions to be inhuman (see paragraph 29 above).
Accordingly, there has been a violation of Article 3 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
38.  The applicant complained that he had been unable to attend some of the civil court hearings where he was a party owing to the refusal to escort him to those hearings. He also complained of a refusal by the domestic courts to examine some of his court actions in the absence of a preliminary decision by the Complaints Committee, the latter having refused to issue him with any of its decisions concerning his complaints. He relied on Article 6 of the Convention.
39.  The Government contested these arguments. They submitted, inter alia, that the Complaints Committee had very limited competence to deal with complaints about punishments applied to detainees or complaints accompanied by hunger strikes. Therefore, the vast majority of complaints or court actions initiated by detainees did not depend on a prior examination by the Complaints Committee. Moreover, the applicant had asked the courts to discontinue the proceedings in at least eight cases against various State authorities, stating that the problems concerned in those court actions had been resolved. One such request to discontinue the proceedings concerned a case against the Complaints Committee and other authorities initiated precisely owing to the alleged failure of that Committee to respond to his complaints. This amounted, in their view, to a settlement of the case at the domestic level, following which the applicant could no longer validly maintain his application before the Court.
40.  The Court notes that the applicant did not specify during which proceedings he had not been escorted to appear before the civil courts (see paragraph 17 above). It is therefore impossible to verify whether the courts adjourned the relevant hearings or whether higher courts quashed the decisions adopted in the applicant’s absence. It also follows from the applicant’s submissions (see paragraph 11 above) that he was in fact escorted on numerous occasions to court hearings.
41.  As for the alleged violation of the applicant’s right of access to court owing to the inactivity of the Complaints Committee, the applicant again did not clarify to which specific proceedings he was referring when lodging his complaint under Article 6. Even assuming that some of the complaints were not covered by his eight requests to discontinue the proceedings referred to in the Government’s observations and accompanying evidence (see paragraph 39 above), the Court is not persuaded that the applicant’s right of access to court has been breached. It is apparent that the courts examined his complaints not only in respect of his conditions of detention or of another nature, but also those challenging the lawfulness of the punishments applied to him by the prison administration (see paragraph 17 above). Therefore, it is apparent from the materials in the file that his right of access to court was not affected in practice.
42.  It follows that the complaints under Article 6 of the Convention must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
III.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
Admissibility
43.  The applicant complained of the refusal by the administration of Prison no. 15 to allow him family visits and of the monitoring of his correspondence.
44.  The Government contested that argument. They noted, in particular, that following the Court’s judgment in the first case of Ciorap, cited above, the legislation and practice were changed so as to ensure the privacy of correspondence by detainees. Mailboxes were installed in prisons where detainees could leave their correspondence in sealed envelopes and the administration could not normally open such letters.
45.  The Court notes that the applicant’s complaint in respect of the alleged monitoring of his correspondence is not supported by any evidence.
46.  As for the refusal to allow him family visits in Prison no. 15, The Court recalls that it has already found a violation of Article 8 of the Convention in Ciorap (cited above, § 119) due to the long period during which the prohibition of meeting relatives applied and to the absence of any justification for such an indiscriminate measure affecting all detainees in the applicant’s position.
47.  However, unlike in Ciorap, in the present case the applicant obtained the annulment of the limitation as soon as he challenged it before the courts (see paragraphs 22 and 23 above). Moreover, he was allowed short-term visits, during which he was not separated from his visitors by a physical barrier (see paragraph 21 above), unlike in Ciorap (cited above, § 111). In view of the above, and of the relatively short period during which extended visits were not allowed, the Court is unable to find a violation of Article 8 of the Convention.
48.  It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
IV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Admissibility
49.  The applicant made further complaints under Articles 5, 10 and 13, as well as under Article 1 of Protocol no. 1 to the Convention.
50.  Having regard to all the material in its possession and to its findings in respect of the complaint under Article 3 above, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
51.  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.”
Damage, costs and expenses
52.  When invited to make claims for just satisfaction under Article 41 of the Convention, the applicant made his submissions after the expiry of the time-limit for doing so. Accordingly, the Court makes no award in this respect.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaint under Article 3 (conditions of detention) admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 3 of the Convention;

3.  Dismisses the applicant’s claims for just satisfaction.
Done in English, and notified in writing on 4 December 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Santiago Quesada	Josep Casadevall
	Registrar	President