MESCEREACOV v. THE REPUBLIC OF MOLDOVA - 61050/11 (Judgment (Merits and Just Satisfaction) : Court (Second Section)) [2016] ECHR 154 (09 February 2016)

In the case of Mescereacov v. the Republic of Moldova,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Işıl Karakaş, President,
          Julia Laffranque,
          Nebojša Vučinić,
          Valeriu Griţco,
          Ksenija Turković,
          Jon Fridrik Kjølbro,
          Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 19 January 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 61050/11) 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 Alexandru Mescereacov (“the applicant”), on 19 September 2011.

2. The applicant, who had been granted legal aid, was represented by Mr V. Ţurcan and Mr M. Belinschi, lawyers practising in Chisinau. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

3. The applicant alleged, in particular, that he had been detained in poor conditions of detention, contrary to Article 3 of the Convention.

4. On 13 May 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1982 and is currently detained in Cricova.

6. In 2002 the Prosecutor’s Office initiated a criminal investigation against the applicant on charges of murder and a detention warrant in respect of him was issued by the Buiucani District Court on 14 February 2002. Since the applicant had left the country, an international search order was issued.

7. In December 2010 the applicant was arrested in the Russian Federation and extradited to Moldova, where he was placed in detention on 29 December 2010 on the basis of the detention warrant of 14 February 2002. The applicant lodged a habeas corpus request in which he complained, inter alia, that he had not been informed about the detention warrant of 14 February 2002 within seventy-two hours, as provided by law, and that there were no relevant and sufficient reasons to deprive him of his liberty. However, the request was rejected on the ground, inter alia, that he had been in hiding and that he could abscond again. Later the detention warrant was renewed several times on similar grounds and the applicant’s appeals were rejected. The last decision in the proceedings concerning his remand in custody dates from 27 May 2011 and it was issued by the Buiucani District Court. By that decision the applicant’s detention on remand was prolonged until 29 June 2011.

8. During his detention the applicant was jailed in Prison no. 13 in Chişinău between 29 December 2010 and 22 March 2012 and after 10 January 2013. The applicant alleges that the cells were overcrowded and dirty; there was no ventilation system; there was no sufficient natural light because the windows were very small; the daily walks lasted for only one hour and the food served was of a very poor quality. In particular he submitted that due to the overcrowding each inmate only had between 1.5 and 2 square metres of available space in the cells. The toilets were separated from the rest of the cells by a wall which was seventy centimetres high or by a curtain and were located at a distance of some 1.5 metres from the table where the inmates served their meals. The inmates were allowed to take showers only once a week and were subjected to passive smoking.

9. On 14 June 2011 the applicant was convicted and sentenced to eight years’ imprisonment. After this date no more detention warrants were issued and he continued to be detained on the basis of the above sentence. The Court was not informed about subsequent developments in the criminal proceedings against the applicant.

II. RELEVANT MATERIAL

10. The relevant parts of the report of the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment compiled following his visit to Moldova from 4 to 11 July 2008 (The United Nations Human Rights Council, document A/HRC/10/44/Add.3, 12 February 2009) read:

“B. Conditions in places of detention

Institutions under the Ministry of Justice

30. Undoubtedly, progress has been achieved in improving conditions of detention. However, some of the institutions visited by the Special Rapporteur were heavily overcrowded. The authorities themselves pointed out that Institution No. 13 in Chişinău was severely overcrowded - on the day of the visit it held 931 persons with the official capacity being 600 (see also appendix). The Special Rapporteur was informed of Government plans to close down this institution.

31. Common problems at all pre- and post-trial prisons are the poor hygienic conditions, restricted access to health care and lack of medication as well as risk of contamination with tuberculosis and other diseases. Whereas the Special Rapporteur notes that the minimum norms regarding nutrition of detainees (Government Decision n. 609 of 29 May 2006) are checked on a daily basis and that, according to the financial plan of the Penitentiary Department, the food budget for 2008 had almost doubled in comparison to 2004 and is set to rise further, he also received consistent allegations regarding the poor quality and quantity of food. ...”

11. In its report for 2009 (page 117, “Conditions of detention”), the Centre for Human Rights in Moldova (“the Human Rights Centre”, which also acts as the Moldovan Ombudsman) found, inter alia, that:

“Regarding personal hygiene, clothing and bedding, despite [the fact that] Government decision no. 609 (29 May 2006) concerning minimum daily food requirements and the issuing of items of personal hygiene provides for the issuing of soap to detainees for bathing and other sanitary-hygienic needs, this has remained unfulfilled during 2009.”

12. In its report for 2010 (page 142 et seq. “Conditions of detention”) the Human Rights Centre found, inter alia, that:

“Failure to adhere to the statutory cell size (4 square metres per person) in the living blocks of the institution has become an unpleasant problem which now affects the prison system across the entire country. ...

The same situation was confirmed during a visit to Chişinău Prison no. 13 on 9 September 2010. In some cells the living space was not proportionate to the number of detainees. During the visit, eight detainees were being held in cell no. 38, which measured 24 square metres. This situation has been seen repeatedly during visits by the Centre’s staff to the Chişinău Pre-trial Detention Centre. Similar findings were made during visits to Rusca Prison no. 7 on 19 May 2010, where six detainees were being held in a cell measuring 15.5 square metres and to Cricova Prison no. 4, where (in living block no. 7) over twenty detainees were being held in a cell measuring 65 square metres.

Overcrowding comes directly within the Ombudsman’s remit as part of the National Mechanism for the Prevention of Torture, which on many occasions has recognised overcrowding in the country’s prisons. ...

... [T]he Prisons Department informed the Ombudsman that meat and fish products are provided [to detainees] whenever possible. At the same time, the authority stated that, owing to the difficult financial situation, during 2010 the detainees in Rezina Prison no. 17 received only 75% and 80% of their normal quotas of meat and fish products respectively. In this connection, the Minister of Justice provided information to the Ombudsman about the expenditure on prisoners’ food in 2010. The cost amounted to MDL 24.05 million, whereas the budgetary need for the same year was, according to the Ministry of Finance’s draft budget, MDL 29.05 million. The daily cost of feeding a detainee in 2010 was MDL 10.24, whilst the daily budgetary need was MDL 12.35. This statistic was often cited by prison authorities to justify why they were unable to provide detainees with meat and fish.

...

As regards sanitary conditions, lighting and ventilation problems continue to exist in the majority of living blocks in Moldovan prisons, with the exception of Taraclia Prisons no. 1 and Rusca Prison no. 7.

The Republic of Moldova inherited old gulag-type prisons in dilapidated buildings, corresponding to former Soviet standards. The prisons do not conform to current national and international standards; however, the budget constraints upon the State do not allow for their reconstruction or renovation.

In the prisons, with the exception of Taraclia Prison no. 1, detainees are held in large-capacity cells insufficiently equipped for their daily needs, namely areas for sleeping, for everyday living and for sanitary equipment. Detainees are held in extremely overcrowded, dark, damp and unventilated spaces full of cigarette smoke. In certain prisons the bunk beds essentially prevent daylight from reaching the living space.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

13. The applicant complained that he had been held in inhuman and degrading conditions in Prison no. 13, contrary to Article 3 of the Convention, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

14. The Government argued that the applicant had failed to exhaust domestic remedies in respect of his complaint under Article 3. They pointed to case-law of the Supreme Court under which compensation for poor conditions of detention may be awarded to persons who have been released from such detention.

15. The Court reiterates that it has examined on numerous occasions the issue of domestic remedies in respect of poor conditions of detention in Moldova (see Sarban v. Moldova, no. 3456/05, §§ 57-62, 4 October 2005; Holomiov v. Moldova, no. 30649/05, §§ 101-107, 7 November 2006; Istratii and Others v. Moldova, nos. 8721/05, 8705/05 and 8742/05, § 38, 27 March 2007; Mitrofan v. Moldova, no. 50054/07, §§ 32 and 33, 15 January 2013; Segheti v. the Moldova, no. 39584/07, § 22, 15 October 2013 and Shishanov v. Moldova, no. 11353/06, § 75, 15 September 2015), and has concluded on each occasion that the remedies suggested by the Government were ineffective in respect of individuals currently held in detention. In Malai v. Moldova (no. 7101/06, §§ 42-46, 13 November 2008), Mitrofan (cited above, § 61), and Segheti (cited above, § 38) it found a violation of Article 13 of the Convention on account of the lack of effective domestic remedies in respect of inhuman and degrading conditions of detention, concluding that “it has not been shown that effective remedies existed in respect of the applicant’s complaint under Article 3” concerning conditions of detention. Since the case-law of the Supreme Court relied upon by the Government is similar to that cited by them in the above-mentioned cases, the Court sees no reason to depart from that finding in the present case.

16. The Court furthermore considers that the applicant’s complaint about the conditions of detention in Prison no. 13 raises questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits, and no grounds for declaring it inadmissible have been established. The Court therefore declares it admissible.

B. Merits

17. The applicant submitted that the conditions of detention in Prison no. 13 had amounted to inhuman and degrading treatment.

18. The Government submitted that the conditions of detention in Prison no. 13 had not amounted to inhuman and degrading treatment and argued that the conditions in that prison had improved considerably since the Court found them to be in breach of Article 3.

19. The Court reiterates the general principles concerning conditions of detention set out in Ostrovar v. Moldova (no. 35207/03, §§ 76 79, 13 September 2005).

20. The Court notes that poor conditions of detention in this particular detention facility were found to prevail in the years 2008, 2009 and 2010 by the United Nations Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment and by the Moldovan Ombudsperson (see paragraphs 9-11 above). The Government adduced no evidence in support of their submission that considerable improvements in Prison no. 13 had taken place during recent years. In such circumstances, the Court considers that there are no reasons to depart from the conclusions reached in its previous judgments (see among recent authorities Hadji v. Moldova, nos. 32844/07 and 41378/07, § 20, 14 February 2012; Silvestru v. the Republic of Moldova, no. 28173/10, 13 January 2015; Pisaroglu v. the Republic of Moldova, no. 21061/11, 3 March 2015). The Court thus considers that the hardship endured by the applicant during his detention in Prison no. 13 went beyond the unavoidable level of hardship inherent in detention and reached the threshold of severity required by Article 3 of the Convention. Accordingly, there has been a violation of Article 3 of the Convention.

21. The Court notes with concern the recurring nature of the problems concerning the poor conditions of detention in Prison no. 13 in Chisinau. It notes that it has found violations of Article 3 of the Convention on many occasions in respect of this particular prison (see, Shishanov, § 127, cited above) and that regrettably, the problem continues to persist. It therefore urges the authorities to take appropriate measures in order to put an end to what seems to be a systemic problem.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

22. The applicant complained under Article 5 §§ 1 and 3 of the Convention that his detention had not been based on a reasonable suspicion that he had committed an offence and that it had not been based on relevant and sufficient reasons. However, he did not substantiate this complaint and the Court notes that on 14 June 2011 the applicant was convicted on the same charges on which he had been kept in detention on remand. Moreover, the Court notes that one of the main reasons relied upon by the domestic courts to place the applicant in detention on remand was the fact that he had been in hiding in another country for eight years. In such circumstances the Court considers this complaint to be manifestly ill-founded. Accordingly, it must be declared inadmissible under Article 35 §§ 3 and 4 of the Convention.

23. The applicant also complained under Article 5 § 1 that after 29 June 2011, when the last detention order had expired, his detention had been unlawful. The Court recalls that pre-trial detention starts when the person is taken into custody and ends when the detainee is either released or convicted, even if only by a court of first instance (see, among other authorities Kalashnikov v. Russia, no. 47095/99, § 110, ECHR 2002-VI and Solmaz v. Turkey, no. 27561/02, §§ 23-24, 16 January 2007). Since the applicant was convicted on 14 June 2011 and sentenced to eight years’ imprisonment, his detention after that date was no longer to be considered detention on remand but fell under Article 5 § 1 (a) of the Convention as detention “after conviction”. Therefore, this complaint is manifestly ill-founded and must also be declared inadmissible under Article 35 §§ 3 and 4 of the Convention.

24. The applicant further complained under Article 5 §§ 2 and 3 of the Convention that upon his placement in detention on 29 December 2010, he had not been brought promptly before a judge and had not been informed within seventy-two hours about the detention warrant issued on 14 February 2002. The Court notes that the applicant made this allegation for the first time in his application lodged on 19 September 2011. Consequently, the complaint was 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.

25. The applicant finally complained that his prolonged detention violated his right to be presumed innocent and was thus in breach of Article 6 § 2 of the Convention. However, he did not substantiate this complaint. In such circumstances and in the light of the material in the case file, the Court does not discern any signs of a violation in respect of this complaint. Accordingly, it must be declared inadmissible under Article 35 §§ 3 and 4 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

26. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

27. The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage suffered.

28. The Government submitted that the amount claimed by the applicant was excessively high.

29. The Court considers it appropriate to award the applicant compensation in respect of non-pecuniary damage. Deciding on an equitable basis, the Court awards him EUR 4,500.

B. Costs and expenses

30. The applicant also claimed EUR 2,710 for the costs and expenses incurred before the Court.

31. The Government contested the amount claimed by the applicant and argued that it was excessive.

32. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the above criteria, the documents in its possession, the complexity of the case and to the fact that most of the complaints have been declared inadmissible, the Court considers it reasonable to award the applicant EUR 800 for costs and expenses.

C. Default interest

33. The Court considers it appropriate that the default interest rate 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,

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

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

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at 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 800 (eight 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Işıl Karakaş
Registrar President

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