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THIRD
SECTION
CASE OF
CULEV v. MOLDOVA
(Application
no. 60179/09)
JUDGMENT
STRASBOURG
17
April 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 Culev v. Moldova,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Ján
Šikuta,
Luis
López Guerra,
Nona
Tsotsoria,
Mihai
Poalelungi,
judges,
and
Santiago Quesada,
Section
Registrar,
Having
deliberated in private on 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 60179/09) 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 Vasile Culev (“the
applicant”), on 29 October 2009.
- The
applicant was represented by Mr V. Sîrghi,
a lawyer practising in Chişinău. The Moldovan Government
(“the Government”) were represented by their Agent, Mr V.
Grosu.
- The
applicant alleged, in particular, that he had been held in inhuman
conditions of detention and that the courts had not deducted from his
prison term the time he had spent in detention pending trial.
- On
20 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).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1961 and lives in Chişinău.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
A. The applicant’s arrest and conviction
- On 8 August 2006 the applicant was arrested on
suspicion of forging official documents, possessing marijuana for
personal use and selling counterfeit foreign currency. He pleaded
guilty to the first charge, but denied having committed the other
offences.
- On
10 August 2006 he was released, but he was arrested again on
16 August 2006 and placed in prison no. 13 in Chişinău
on 26 August 2006.
- On 20 February 2007 he was convicted of the offence to
which he had confessed and acquitted on the rest of the counts. He
was sentenced to a prison term of six months and six days and
released immediately, because he had already been detained for an
equivalent period of time pending the trial.
- On 18 September 2007 the Chişinău Court of
Appeal partially quashed that judgment and increased the applicant’s
sentence to two years. On 3 March 2008 he was arrested again and
was detained in prison no. 13 in Chişinău between 6 March
2008 and 27 December 2009 (when he was transferred to prison no. 5 in
Cahul). On 10 April 2010 he was transferred to Pruncul prison
hospital no. 16 for tuberculosis treatment.
- On
15 July 2008 the Supreme Court of Justice ordered a rehearing of the
case by the Chişinău Court of Appeal.
- On
16 December 2008 the Chişinău Court of Appeal convicted the
applicant on all counts (see paragraph 7 above), sentencing him to
seven years and six months of imprisonment.
- On
30 June 2009 the Supreme Court of Justice partly upheld that
conviction, sentencing the applicant to seven years and two months of
imprisonment.
- On 17 November 2009 the Supreme Court of Justice
adopted a judgment by which it corrected an error made in its final
judgment of 30 June 2009. As a result the entire period of the
applicant’s detention pending trial was deducted from the
applicant’s prison term. The applicant continues to serve his
sentence.
B. Conditions of detention
- The applicant was detained in prison no. 13 from 16
August 2006 until 20 February 2007, as well as from 6 March 2008
until 27 December 2009. He described the conditions of detention as
follows.
- The
cell measured 20 square metres and accommodated thirteen to twenty
detainees at a time. It was damp and dirty. In summer it was
extremely hot, forcing everyone to go half naked; during the winter
it was very cold.
- The
applicant was allegedly subjected to passive smoking despite his
tuberculosis, of which the prison authorities were aware from the
very beginning of his detention. The one small window was covered by
a metal sheet with small holes, preventing daylight from reaching the
cell.
- Tap
water was not always available, which made it impossible to eliminate
the smell from the toilet, situated just 1.5 metres from the dining
table. Access to a shower was ensured only once a week. The cell was
infested with parasitic insects.
- The
applicant allegedly asked on a number of occasions to be given
appropriate medical assistance, but this was refused as the necessary
medication was not available (the applicant did not specify which
medication and for what illness it had been required). He also asked
for better food and extra time for his daily walks in order to
improve his state of health, but these requests were also refused.
- According to the applicant, the food served smelled
bad and was virtually inedible.
- In a letter of 8 December 2006 in reply to a complaint
by the applicant, the Head of the Penitentiaries Department informed
him that during a check it had been established that the cell in
which the applicant and five other persons were detained, cell no.
57, was designed to accommodate twelve persons.
- On 21 September 2009 the applicant went on a hunger
strike and was moved to another cell.
- The Government provided details concerning the
applicant’s conditions of detention, including the surface area
of each cell in which he had been detained in prison no. 13, such as
cell no. 57, which measured 22.3 square metres. Each cell was well
lit and had a window and working ventilation. Each cell was equipped
with 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 checked for quality by the prison doctor. Heating was
secured through the use of the prison’s autonomous thermal
generator. Smoking was prohibited in the cells and was authorised in
specially designated areas only; the applicant himself smoked twenty
cigarettes a day. Moreover, the applicant was tested extensively for
tuberculosis since his first placement in a cell in prison no. 13. He
had suffered from that illness in 2004 in Ukraine and was therefore
known to have an increased risk of recurrence and was treated
accordingly. The Government submitted evidence of such medical
check-ups and treatment, which also included treatment for other
illnesses he was suffering from.
II. RELEVANT DOMESTIC LAW AND PRACTICE, AS WELL AS
NATIONAL AND INTERNATIONAL REPORTS
- Under Article 225 of the Enforcement Code (in force
since 1 July 2005 and republished on 5 November 2010), the minimum
living space for each detainee is 4 square metres.
- The Government annexed to 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 Penitentiaries Department. In both
cases the applicants had been awarded compensation for ill-treatment
and/or inhuman conditions of detention.
- 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:
“Observance of the statutory living space (4
square metres) in the living blocks of the institution
has become an unpleasant problem; it has become a systemic deficiency
of prisons throughout the country. ...
The same situation was attested 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. At
the time of the visit there were eight persons detained in cell
no. 38, which measures 24 square metres. This situation has been
attested 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 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 it is covered by the National Mechanism
for the Prevention of Torture, which has established overcrowding in
the country’s prisons on many occasions. ...
... [T]he Penitentiaries Department has informed the
ombudsman that meat and fish products are provided [to detainees]
whenever that is possible. However, that authority stated that, owing
to the difficult financial situation, during 2010 detainees in prison
no. 17 in Rezina received only 75% of the necessary meat products and
80% of the necessary fish products. In this regard, the Minister of
Justice submitted information concerning the expenses for feeding
detainees in 2010. Such expenses amounted to MDL 24.05 mln,
while the amount required for that period of time was, according to
Ministry of Finance when presenting the draft Budget law, MDL 29.05
mln. The daily cost of feeding a detainee in 2010 was MDL 10.24,
while the daily requirement 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 sanitary conditions, lighting 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 run-down buildings, which corresponded to soviet standards.
These prisons do not satisfy the requirements of national and
international standards, but 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 to meet the daily needs of detainees: space for sleeping,
for daily life and for sanitary installations. Detainees are held in
extremely cramped, dark, damp, non-ventilated spaces filled with
cigarette smoke. In certain prisons the bunk beds essentially prevent
daylight from reaching the living space.”
- The relevant parts of the report by the European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT) on its visit to Moldova between 14 and
24 September 2007 (CPT/Inf (2008) 39) read as follows
(unofficial translation):
“46. At the outset of the 2007 visit,
the Director of the Penitentiaries 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 prison population. At the time of the 2007
visit, the total number of prisoners stood at 8,033 (including 1,290
on remand), compared to 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 in
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 ...
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 at 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 last resort. 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
- The
applicant complained that the conditions of his detention in prison
no. 13 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 had failed to exhaust
available domestic remedies by claiming compensation for the damage
allegedly caused by his detention in inhuman conditions. They
referred to the case-law of the domestic courts in this regard (see
paragraph 25 above).
- The
Court observes that it has already found a violation of Article 13 of
the Convention in Malai v. Moldova (no. 7101/06, §§ 45-46,
13 November 2008), in I.D. v. Moldova (no. 47203/06,
§ 50, 30 November 2010), and in Rotaru v. Moldova
(no. 51216/06, § 47, 15 February 2011) on
account of the lack of effective remedies in Moldova for inhuman and
degrading conditions of detention. It also observes that the remedy
invoked by the Government does not have a preventive effect in the
sense of improving the conditions of an 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 the applicant’s
situation.
- Therefore,
the Government’s preliminary objection must be rejected.
- The
Court refers to its case-law, as summarised in I.D. v. Moldova
(cited above, §§ 27-31),
concerning the application of the six-month rule established in
Article 35 § 1 of the Convention to complaints about conditions
of detention, where the applicant’s detention is interrupted.
It finds that the applicant’s first period of detention in
prison no. 13 (between 26 August 2006 and 20 February 2007) is to be
considered as separate from his second detention period (which
started on 6 March 2008). It is true that the applicant was detained
within the framework of the same criminal proceedings during both
periods of his detention. Nonetheless, in view of the significant gap
– in excess of a year – between the two periods of
detention with which the complaints are concerned the Court cannot
treat them as a part of a continuing situation as described above,
even if the other conditions are met (see Haritonov v.
Moldova, no. 15868/07, § 26, 5 July
2011). The applicant lodged his complaint on 29 October 2009
and there is nothing to suggest that he was in any way prevented by
the authorities from complaining before that date. Consequently, in
so far as it refers to his first period of detention, the applicant’s
complaint has been lodged more than six months after the alleged
breach took place and must be declared inadmissible under Article 35
§§ 1 and 4 of the Convention.
- The
Court notes that in his observations on the merits of the case
received on 30 August 2010 the applicant complained about the
allegedly insufficient medical assistance in prison no. 16, where he
was treated for tuberculosis. This new complaint had not been part of
the initial application and had not been raised in any of the
correspondence before communication of the present application to the
respondent Government. It was therefore registered as a separate
application as falling outside the scope of the present case and will
not be examined here.
- The
Court notes that the complaint concerning the conditions of detention
during the applicant’s second period of detention at prison
no. 13 (between 6 March 2008 and 27 December 2009) 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 prison no. 13, in particular, the overcrowding, insufficient
access to daylight and ventilation, the quality of the food provided
and the quality of medical assistance provided (see paragraphs 15-20
above). He also claimed that he had been deprived of medical
assistance required by his condition.
- The Government submitted that in prison no. 13 the
applicant had been detained in cells offering 4 square metres of
living space per detainee, in accordance with the legal requirements
(see paragraph 24 above). They considered that the conditions of
detention had been acceptable (see paragraph 23 above). Moreover, the
applicant’s hunger strike had not been in relation to the
conditions of detention, and the applicant himself had stated this
during his protest action on 21 September 2009.
- The
Court agrees with the Government that in certain aspects the
applicant did not substantiate his claims, notably concerning the
inadequacy of medical treatment in prison no. 13 (see paragraph 23
above).
- The
Court observes that in Ţurcan v. Moldova (no. 10809/06,
§§ 35 39, 27 November 2007) it found a
violation of Article 3 of the Convention in respect of the poor
conditions of the applicant’s detention in Prison no. 13
between February and September 2006. In Haritonov v. Moldova
(cited above) a similar finding was made
for the applicant’s conditions of detention at the same prison
in the period between 6 September 2006 and 17 January 2007.
- Since
the present case refers to the same detention facility (prison
no. 13) as that concerned by the Ţurcan and
Haritonov judgments and in view of the findings of the CPT
(see paragraph 27 above) and the national Ombudsman (see paragraph 26
above), as well as the lack of conclusive evidence adduced by the
Government to prove that the situation had changed significantly, the
Court considers that there are no reasons to depart from the
conclusions reached in the above-mentioned cases. The Court thus
considers that the hardship endured by the applicant during his
detention between 6 March 2008 and 27 December 2009 went beyond the
unavoidable level of hardship inherent in detention and reached a
threshold of severity contrary to Article 3 of the Convention.
Accordingly, there has been a violation of Article 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The applicant complained of a violation of Article 5
of the Convention on account of the failure of the Supreme Court of
Justice to deduct the time spent in detention pending trial from his
prison term, as required by law. He claimed that he had not been
informed of any subsequent decision in that regard until after
reading the Government’s observations.
- The
Government referred to the judgment of 17 November 2009 (see
paragraph 14 above).
- The
Court considers that in the light of the judgment of 17 November
2009 this complaint does not raise any issue under Article 5 of the
Convention.
- It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
- The
applicant also complained, under the same provision, that he had been
detained unlawfully on the basis of incorrect judgments adopted by
the domestic courts. The Court considers that this complaint
essentially repeats that made under Article 6, examined below.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant also complained of a violation of Article 6 of the
Convention on account of the allegedly incorrect and biased
examination of evidence by the domestic courts which resulted in
wrong and unmotivated judgments.
- 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, which is essentially what the applicant is
requesting. It follows that this complaint must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
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. Pecuniary damage
- The
applicant claimed 9,500 euros (EUR) in compensation for expenses
which he had allegedly incurred for medication and treatment.
- The
Government contested this claim, finding it unsubstantiated.
- The
Court notes the absence of any evidence in support of the applicant’s
claim that he had had to pay for any medication or treatment. It
would rather follow from the extensive list of medical interventions
submitted by the Government that any medical check-ups and treatment
were paid for by the State since he was a detainee. The Court
therefore does not make any award for pecuniary damage.
B. Non-pecuniary damage
- The
applicant also claimed EUR 1 million in respect of non-pecuniary
damage caused to him as a result of his detention in inhuman
conditions.
- The
Government considered that no compensation was due in the absence of
a violation of any Convention rights. In any event, the sum claimed
was excessive.
- Having
regard to the violation of Article 3 of the Convention found above,
the Court considers that an award of compensation for non-pecuniary
damage is justified in this case. Making its assessment on an
equitable basis, and considering in particular the long period of
time during which the applicant was detained in inhuman conditions,
the Court awards the applicant EUR 4,500.
C. Costs and expenses
- The
applicant claimed EUR 300 for legal costs. He submitted payment slips
in respect of payments made to his lawyer.
- The
Government considered that the costs incurred did not have any
relevance to the alleged violation of Article 3 of the Convention and
could therefore not be recovered, because the payment slips concerned
representation in the domestic criminal proceedings.
- The
Court notes that one of the payment slips expressly mentions the
costs of representation for the preparation of the present
application, amounting to 4,784 Moldovan lei (EUR 300). It is
therefore satisfied that the applicant has in fact made the payment
and that it was made specifically to pay for his lawyer’s
services in representing him in the present proceedings. Moreover,
the amount claimed is not excessive as to quantum, and therefore the
Court awards the amount claimed in full.
D. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 3,
concerning the conditions of detention during the applicant’s
second period of detention, admissible and the remainder of the
application inadmissible;
- 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 of 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 on the date of settlement:
(i) EUR
4,500 (four thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
300 (three hundred euros), plus any tax that may be chargeable to the
applicant, 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 17 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall Registrar President
