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
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.
The Moldovan Government (“the Government”) were
represented by their Agent, Mr V. Grosu.
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.
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).
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
The applicant was born in 1965 and lives in Chişinău.
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
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
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.
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”.
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.
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.
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
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.
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
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.
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
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.
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.
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.
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.
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.
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
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.
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. ...”
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
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
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).
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.
Accordingly, the Government’s preliminary
objection must be rejected.
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
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).
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).
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.
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.
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
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.
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.
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.
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.
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
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.
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.
The Court notes that the applicant’s complaint in
respect of the alleged monitoring of his correspondence is not supported by any
evidence.
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.
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.
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
The applicant made further complaints under
Articles 5, 10 and 13, as well as under Article 1 of Protocol no. 1 to the
Convention.
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
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
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
