THIRD SECTION

CASE OF CONSTANTIN MODARCA v. THE REPUBLIC OF MOLDOVA

(Application no. 37829/08)

JUDGMENT

STRASBOURG

13 November 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 Constantin Modarca v. the Republic of Moldova,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	Josep Casadevall, President,
	Egbert Myjer,
	Corneliu Bîrsan,
	Alvina Gyulumyan,
	Ján Šikuta,
	Luis López Guerra,
	Nona Tsotsoria, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 16 October 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 37829/08) 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 Constantin Modarca (“the applicant”), on 18 July 2008.
2.  The applicant was represented by Mr M. Grigoras, a lawyer practising in Străşeni. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
3.  The applicant alleged, in particular, that he had been held in inhuman conditions of detention and that the courts incorrectly convicted him.
4.  On 10 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 1988 and lives in Taraclia.
7.  The facts of the case, as submitted by the parties, may be summarised as follows.
8.  On 13 October 2007 the applicant was arrested on suspicion of murder. On 7 August 2008 he was found guilty as charged by the Străşeni District Court and sentenced to fifteen years’ imprisonment.
9.  That judgment was upheld by the Chişinău Court of Appeal on 22 October 2008 and by the Supreme Court of Justice on 25 February 2009.
10.  On 17 October 2007 the applicant was placed in detention in Prison no. 13 in Chişinău. He was transferred to Codru Psychiatric Hospital on 27 November 2007 and returned to Prison no. 13 on 18 December 2007. He was transferred to Prison no. 5 in Cahul on 18 January 2009. Since 21 January 2009 the applicant has been detained in Prison no. 1 in Taraclia.
11.  The applicant described the conditions of his detention in Prison no. 13 as follows: he had been held in a 12 square metre cell together with up to five other detainees and could only stretch his muscles during a short walk outside his cell; there was no functioning ventilation; the cell was damp and full of parasitic insects; in winter it was cold. The food was insufficient and virtually inedible.
12.  According to the Government, the applicant has been detained in Prison no. 13 in the following cells:
- cell no. 28, measuring 18.5 square metres and designed to accommodate six persons;
- cell no. 39, measuring 13.78 square metres and designed to accommodate six persons;
- cell no. 40, measuring 13.78 square metres and designed to accommodate six persons;
- cell no. 47, measuring 9.1 square metres and designed to accommodate six persons;
- cell no. 48, measuring 12.22 square metres and designed to accommodate eight persons;
- cell no. 19, measuring 34.8 square metres and designed to accommodate fourteen persons.
II.  RELEVANT DOMESTIC LAW AND PRACTICE AND INTERNATIONAL MATERIALS
13.  Under Article 225 of the Enforcement Code (in force since 1 July 2005, republished on 5 November 2010), the minimum living space for each detainee cannot be smaller than four square metres.
14.  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, and Gristiuc v. the Ministry of Finance and the Prisons Department. In both cases the applicants were awarded compensation for ill-treatment and/or inhuman conditions of detention.
15.  In its report for 2010 (page 142 et seq. – “Conditions of detention”), the Centre for Human Rights in Moldova (“the Centre”, which is the Moldovan Ombudsman institution) found, inter alia, that:
“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 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. During the visit, eight persons were being held in cell no. 38, which measures 24 square metres. This situation has been observed repeatedly during visits of the Centre’s staff to the preventive detention centre in Chişinău. Similar findings were made during visits to Prison no. 7 in Rusca on 19 May 2010, where six persons were being held in a cell measuring 15.5 square metres and to Prison no. 4 in Cricova, where over twenty persons were detained in a cell measuring 65 square metres in living section no. 7.
Overcrowding is a matter of direct relevance to the ombudsman’s mandate as part of the National Mechanism for the Prevention of Torture, which established on many occasions the overcrowding in the country’s prisons. ...
... [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 respect, 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, 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.
...
In respect of the sanitary conditions, illumination and ventilation problems continue to exist in the majority of living blocks in the prisons of the Republic of Moldova, with the exception of Prisons no. 1 in Taraclia and no. 7 in Rusca.
The Republic of Moldova inherited old gulag-type prisons with dilapidated buildings, corresponding to soviet standards. These prisons do not satisfy the requirements of national and international standards, while the reduced financial means of the State do not allow for their reconstruction or renovation.
In the prisons, with the exception of Prison no. 1 in Taraclia, detainees are held in large-capacity cells insufficiently equipped for the daily needs of detainees: space for sleeping, daily living and sanitary installations. Detainees are held in extremely cramped, dark, damp, non-ventilated spaces thick with cigarette smoke. In certain prisons the bunk beds essentially prevent daylight from reaching the living space.”
16.  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 14 to 24 September 2007 read as follows (unofficial translation):
“46.  At the outset of the 2007 visit, the Head of the Prisons Department of the Ministry of Justice provided the delegation with detailed information on measures already taken or planned with a view to reforming the Moldovan penitentiary system and implementing the CPT’s recommendations. One particularly welcome outcome of these measures is the reduction of the country’s prisoner population. At the time of the 2007 visit, the total number of prisoners stood at 8,033 (including 1,290 on remand), compared with 10,591 in 2004. This positive trend can be attributed to legislative changes in recent years, including the entry into force of a new Code of Execution of Sentences in July 2005 and the adoption of amendments to the Criminal Code and the Code of Criminal Procedure. As a result, there has been an increase in the number of conditional early releases, as well as a wider use of alternatives to imprisonment and a more selective application of remand custody by the courts.
	Further, the implementation of the “Concept for reforming the penitentiary system in the period 2004-2013” has been supported by an increase in the budgetary allocation (from 75.8 million lei in 2004, to 166.1 million lei in 2007), as well as by a growing input of foreign aid. This has enabled, inter alia, the amelioration of the food provided to prisoners, an improvement of health care, and the carrying out of refurbishment works at several penitentiary establishments (for example, no. 1 in Taraclia, no. 7 in Rusca and no. 17 in Rezina).
	Last but not least, there has been an important shift in mentality through improved staff recruitment and training procedures. The delegation was informed that the directors of many penitentiary establishments had been changed in the last year, following a competition and a probation period. Further, new training programmes for staff had been developed, placing particular emphasis on human rights issues (see also paragraph  100).
47.  The CPT can only welcome the above-mentioned measures taken by the Moldovan authorities. Nevertheless, the information gathered by the Committee’s delegation during the 2007 visit shows that much remains to be done. In particular, overcrowding continues to be a problem; despite the fact that all establishments visited were operating well under their official capacities, there was on average only 2 m² of living space per prisoner, rather than the standard of 4 m² provided for in Moldovan legislation.
	The CPT is convinced that the only viable way to control overcrowding and achieve the standard of at least 4 m² of living space per prisoner is to adopt policies designed to limit or modulate the number of persons sent to prison. In this connection, the Committee must stress the need for a strategy covering both admission to and release from prison to ensure that imprisonment really is the ultimate remedy. This implies, in the first place, an emphasis on non-custodial measures in the period before the imposition of a sentence and, in the second place, the adoption of measures which facilitate the reintegration into society of persons who have been deprived of their liberty.
	The CPT trusts that the Moldovan authorities will continue their efforts to combat prison overcrowding and in so doing, will be guided by Recommendation Rec(99)22 of the Committee of Ministers of the Council of Europe concerning prison overcrowding and prison population inflation, as well as Recommendation Rec(2003)22 on conditional release (parole).”
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
17.  The applicant complained that he had been detained in inhuman conditions of detention, in breach 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
18.  The Government submitted that the applicant’s complaint concerning the conditions of detention during his initial detention in Prison no. 13 (between 17 October and 27 November 2007) should be rejected as lodged outside the six-month time-limit prescribed by Article 35 of the Convention. They relied on the Court’s case-law such as Koval v. Ukraine ((dec.), no. 65550/01, 30 March 2004) and I.D. v. Moldova (no. 47203/06, § 31, 30 November 2010) and considered that the two periods of the applicant’s detention in Prison no. 13 were distinct instances and did not constitute a “continuous situation”.
19.  The Government also submitted that the complaint under Article 3 should be rejected for failure to exhaust available domestic remedies. The applicant did not complain to the prison authorities about his conditions of detention and did not initiate a civil court action claiming compensation for the damage allegedly caused to him. They referred to the domestic case-law in the cases of Drugaliov and Griştiuc and others (see paragraph 14 above).
20.  In respect of the first objection raised by the Government, the Court refers to the principles developed in its jurisprudence concerning the notion of “continuous situations” as it applies to the specific field of conditions of detention (see I.D. v. Moldova, §§ 25-31, cited above, and the case-law cited therein). In the present case, it finds that the applicant did not focus on different aspects of his detention during the first and second periods of detention in Prison no. 13, but rather described those conditions as a whole. Indeed, the case is similar to that of Guliyev v. Russia (no. 24650/02, 19 June 2008), where the Court found that two different periods of detention amounted to a “continuous situation” because the main characteristic of both periods of detention had been the severe overcrowding in the cells (see also Haritonov v. Moldova, no. 15868/07, § 24, 5 July 2011). In the applicant’s case, the three-week transfer in order to be examined in a psychiatric hospital was rather a relatively short interruption of his detention than two distinct periods of detention warranting to be examined separately. Accordingly, the Government’s objection must be rejected.
21.  As for the second objection, 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 against 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, cited above, § 50, and Rotaru v. Moldova (no. 51216/06, § 47, 15 February 2011). It also observes that the remedy invoked by the Government could 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). 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 (see, for instance, Oprea v. Moldova, no. 38055/06, § 33, 21 December 2010), which was and still is the applicant’s situation. Therefore, this objection must equally be rejected.
22.  The Court notes that the complaint under Article 3 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
23.  The applicant referred to his description of the conditions of detention, in particular in Prison no. 13, including overcrowding, insufficient ventilation, and the quality of food served (see paragraph 11 above).
24.  The Government contended that the applicant had been detained in appropriate conditions. The cells offered sufficient living space. Each cell was well lit, had a window and working ventilation, as well as a sink and a toilet separated from the rest of the cell by a wall. Food was prepared in accordance with the regulations and regularly verified for its quality by the prison doctor. Heating was secured through the use of the prison’s independent thermal generator. Smoking was prohibited in the cells and was authorised in specially designated areas only. Each detainee was provided with bed linen (changed every week), soap and toilet paper. Detainees also had an hour’s walk every day. A library offered literature in Prison no. 13 and detainees were allowed to have personal radios and television sets in the cells.
25.  In the present case the Court notes that the parties disagreed on most factual issues concerning the applicant’s conditions of detention. However, the Government provided detailed information concerning the living space available in each of the cells in which the applicant had been detained, together with the official occupancy rate in each of those cells (see paragraph 12 above). It follows from that information that the applicant had between 1.51 and 2.5 square metres of living space in most of the cells in which he was detained, except for cell no. 28, in which he had 3.83 square metres of living space. This is significantly below the minimum of four square metres of living space established in the domestic law and referred to by the CPT in its 2007 report concerning Moldova (see paragraphs 13 and 16 above).
26.  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, and Modarca v. Moldova, no. 14437/05, § 64, 10 May 2007). It also notes that the applicant had to spend twenty-three hours a day in such cramped conditions for several years.
27.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 3 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
28.  The applicant complained under Article 6 §§ 1, 2 and 3 of the Convention that the prosecution and courts had not verified all the facts and evidence properly, had not heard two witnesses and had wrongly convicted him.
29.  Having examined the case file, the Court does not see any indication of arbitrariness in the judgments of the domestic courts. It therefore has no reason to question those judgments, nor is it its role to act as a “fourth-instance court” in deciding upon a person’s guilt or innocence, as essentially asked for by the applicant. It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
30.  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.”
31.  The applicant did not submit a claim for just satisfaction, stating that all he wanted was to be released from prison in order to take care of his parents. Accordingly, the Court considers that there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the complaint under Article 3 of the Convention admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 3 of the Convention.
Done in English, and notified in writing on 13 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Santiago Quesada	Josep Casadevall	Registrar	President