CASE OF HADJI v. MOLDOVA

THIRD SECTION

CASE OF HADJI v. MOLDOVA

(Applications nos. 32844/07 and 41378/07)

JUDGMENT

STRASBOURG

14 February 2012

FINAL

14/05/2012

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Hadji 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 24 January 2012,

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

PROCEDURE

1. The case originated in two applications (nos. 32844/07 and 41378/07) 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 Iurie Hadji (“the applicant”), on 14 July 2007 and 28 August 2007 respectively.

2. The applicant was represented by Ms M. Budan, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.

3. The applicant alleged, in particular, a breach of his right not to be subjected to inhuman and degrading treatment as a result of poor conditions of detention.

4. On 29 November 2010 the Court decided to give notice of the applications to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. On 24 September 2003 the applicant was arrested on suspicion of being a member of a criminal gang specialising in the theft of cars. On 23 November 2006 the applicant was convicted and on 25 April 2007 his conviction was upheld on appeal by the Chişinău Court of Appeal. He was sentenced to twelve years’ imprisonment. During the criminal proceedings against him the applicant was detained in the following detention facilities:

- 26 November 2003 – 2 December 2003: Prison no. 13;

- 2 December 2003 – 14 January 2004: detention facility of the Ministry of Internal Affairs;

- 14 January 2004 – 16 February 2004: Prison no. 13;

- 16 February 2004 – 25 February 2004: detention facility of the Ministry of Internal Affairs;

- 25 February 2004 – 4 January 2007: Prison no. 13;

- 4 January 2007 – 1 March 2007: Prison no. 16;

- 1 March 2007 – 1 April 2008: Prison no. 13;

- 1 April 2008 – 2 June 2010: Prison no. 8;

- 2 June 2010 – 4 February 2011: Prison no. 12;

- 4 February 2011 – present: Prison no. 8.

6. According to the applicant the conditions of detention in Prison no. 13 and Prison no. 8 were very poor and amounted to inhuman and degrading treatment. In respect of Prison no. 13, the applicant submitted that the cells were overcrowded and humid and there was no ventilation. He also complained about the quality and quantity of the food. As to Prison no. 8, he submitted that it was located on territory controlled by the Transdniestrian separatist authorities but was itself under the control of the Moldovan constitutional authorities. The separatist authorities had cut off the power and water supplies and disconnected the prison from the sewage network. As a result the inmates had electrical power for only three hours per day and the water was limited to fifteen litres per day, plus another fifty litres once a week for showers and washing clothes.

II. RELEVANT NON-CONVENTION MATERIAL

7. The relevant parts of the Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerning a visit to Moldova between 14 au 24 September 2007 read as follows (unofficial translation):

“84. Penitentiary establishment No. 8 in Bender had been the subject of three visits by the CPT since 2003, following the decision of the municipal authorities of Bender to deprive the establishment of running water and electricity supply (and, as of 2005, to disconnect it from the city’s sewage disposal system). The seriousness of the situation confronting the establishment led the Committee to state in the report on its visit in March 2006 that, unless the above-mentioned problems were resolved, prisoners should be relocated elsewhere. In their response to that report, the Moldovan authorities indicated that they considered the situation at Penitentiary establishment No. 8 in Bender to be under control and saw no reasons for the relocation of prisoners to other establishments.

85. When re-visited by the CPT’s delegation on 21 September 2007, the establishment was holding 99 prisoners (compared with 101 on 18 March 2006). The delegation was informed that some 35 inmates had been released since March 2006, and approximately the same number of new prisoners had been admitted. The great majority of the prisoners currently held at the establishment originated from the Transdniestrian region or nearby locations. The delegation gained the impression that all prisoners who had been admitted in the last year had themselves asked for a transfer to Bender, in particular because of wishing to be closer to their families. An examination of the documentation confirmed that newly admitted prisoners had been expressly informed of the conditions prevailing at the establishment (i.e. absence of running water, electricity and sewage disposal) and had confirmed with their signature their wish to be transferred there. Further, it appeared that the few inmates who had requested transfer to other establishments had received satisfaction.

86. As regards material conditions, in terms of living space per prisoner (some 6 m²), state of repair and decoration, the dormitories in which inmates were accommodated offered conditions superior to those witnessed at any other penitentiary establishment seen by the CPT in Moldova. Further, prisoners stated that the food they received was better than that provided elsewhere. Moreover, no problems were reported as regards the heating.

However, in the absence of any progress in the stand-off between the municipal authorities of Bender and the Moldovan authorities, electricity continued to be produced by generators and was available 3 to 4 hours a day in the evenings, enabling inmates inter alia to watch TV. Further, water was delivered regularly by a lorry‑cistern and was distributed into reservoirs supplying the kitchen and the bathroom; inmates could take a shower once a week. As for toilets, cesspools had been installed in the basements of the unused buildings.

87. Prisoners could circulate freely around the establishment’s extensive premises and engage in outdoor sports. However, there was a shortage of organised activities. Some 36 prisoners were employed in the establishment’s general services (kitchen, cleaning, repairs, etc.). Further, the establishment’s director spoke of plans to set up a carpentry workshop; however, it was unclear when these plans would materialise.

88. The delegation was informed that relations with the municipal authorities of Bender had become less tense in the last year. As a result, staff travelling across the border between Moldova and the Transdniestrian region were reportedly able to come to work on a regular basis.

89. To sum up, it is clear that the Moldovan authorities have continued to take steps to alleviate, as far as possible, the difficult situation facing Penitentiary establishment No. 8 in Bender and to ensure that the health and welfare of prisoners are protected. Further, there are signs of a more pragmatic approach on the part of both parties concerned by the stand-off. This is encouraging.

THE LAW

I. JOINDER OF THE APPLICATIONS

8. The Court considers at the outset that, in the interests of the proper administration of justice, the applications registered under the numbers 32844/07 and 41378/07 should be joined in accordance with Rule 42 § 1 of the Rules of Court, as there is common ground between the facts giving rise to the two cases.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

9. The applicant complained under Article 3 of the Convention about the conditions of his detention in the detention facility of the Ministry of Internal Affairs, Prison no. 13 and Prison no. 8. In his reply to the Government’s observations dated 15 July 2011, the applicant also complained for the first time about the conditions of his transportation during the criminal proceedings and the conditions of his detention in the courts. Article 3 reads as follows:

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

A. Admissibility

10. The Government submitted, firstly, that the complaint concerning the conditions of detention prior to 14 January 2007 should be dismissed for being lodged outside the six-month time-limit. Moreover, the applicant had failed to exhaust domestic remedies in respect of his complaint under Article 3.

11. In so far as the latter objection is concerned, the Court notes that a similar objection was examined and dismissed by the Court in I.D. v. Moldova (no. 47203/06, §§ 34-35, 30 November 2010) because the Government had not shown that an effective remedy had been available in theory and in practice. In such circumstances, and in view of the similarity between the Government’s position in this case and in I.D., the Court does not find it possible to depart from its reasoning and findings in I.D., and it therefore dismisses the Government’s objection.

12. As to the question of the six-month time-limit rule, the Court reiterates that the object of the six-month time-limit under Article 35 is to promote legal certainty by ensuring that cases raising issues under the Convention are dealt with within a reasonable time and that past decisions are not continually open to challenge. In cases where there is a continuing situation, the six-month period runs from the cessation of the situation (see B. and D. v. the United Kingdom, no. 9303/81, Commission decision of 13 October 1986, Decisions and Reports (DR) 49, p. 44). The concept of a “continuing situation” refers to a state of affairs which operates by continuous activities by or on the part of the State so as to render the applicant a victim (see Montion v. France, no. 11192/84, Commission decision of 14 May 1987, DR 52, p. 227; and Hilton v. the United Kingdom, no. 12015/86, Commission decision of 6 July 1988, DR 57, p. 108). Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of (see D.P. and J.C. v. the United Kingdom (dec.), no. 38719/97, 26 June 2001).

13. The Court notes that the applicant complained for the first time about the manner in which he had been transported during the criminal proceedings and about the conditions of his detention in the courts only in July 2011, whereas the criminal proceedings against him had ended in 2007. There is nothing to suggest that the applicant was in any way prevented by the authorities from complaining before that date. Consequently, the 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.

14. In so far as the conditions of the applicant’s detention prior to his last period of detention in Prison no. 13 are concerned, the Court notes that there was a period of almost two months in the applicant’s detention, while he was detained in Prison no. 16, about which he does not complain. It is true that the applicant was detained within the framework of the same criminal proceedings throughout his entire detention. Nonetheless, in view of the significant gap 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). In such circumstances, the Court considers that only the complaint concerning the last period of detention, in Prison no. 13, was lodged within six months. Consequently, the complaint in respect of the other periods of detention in Prison no. 13 must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.

15. Finally, in so far as the conditions of detention in Prison no. 8 are concerned, the Court notes the CPT’s findings to the effect that the conditions of detention in that prison were generally better than in other detention facilities and that the only major problem was the disruption in the supplies of water and electricity. The inmates who requested transfers to other establishments on account of that disruption received satisfaction (see paragraph 7 above). The applicant did not adduce any evidence to show that he or his lawyer had made any requests to be transferred to other establishments. Therefore, the Court is not persuaded that he was genuinely dissatisfied with his conditions of detention at the material time, that is, with the problems in the supply of electricity and water. Accordingly, the Court concludes that this part of the complaint under Article 3 of the Convention is manifestly ill-founded and therefore inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.

16. The Court considers that the remaining part of the complaint under Article 3 of the Convention (about the conditions of the applicant’s detention in Prison no. 13 between 1 March 2007 and 1 April 2008) 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 that detention for its entire duration amounted to inhuman and degrading treatment.

18. The Government submitted that the applicant’s description of the conditions of his detention was not sufficiently detailed. Alternatively, they argued that in view of the particular circumstances of the case the treatment to which he had been subjected had not attained the threshold of severity required by Article 3 of the Convention.

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 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. Since the present case refers to the same detention facility and since no evidence has been adduced by the Government that the situation had changed between September 2006 and March 2007, the Court considers that there are no reasons to depart from the conclusions reached in Ţurcan. The Court thus considers that the hardship endured by the applicant during his detention between 1 March 2007 and 1 April 2008 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.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

21. The applicant complained of a violation of Article 3 of the Convention as a result of alleged ill-treatment at the hands of the police. However, he did not submit any evidence to substantiate his allegations and, therefore, the complaint is manifestly ill-founded and inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.

22. The applicant also complained under Article 5 of the Convention that between 2004 and 2005 he had been detained without a warrant for his detention. The Court notes that the applicant made this allegation for the first time in application no. 32844/07, lodged on 14 July 2007. 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.

23. The applicant further complained under Article 6 that the criminal proceedings against him had been unfair and that the prosecutor’s office had refused to initiate criminal proceedings against third parties. The Court considers that there is nothing in the material submitted by the applicant to suggest that the criminal proceedings against him were unfair in any way. This part of the complaint is thus manifestly ill-founded and therefore inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention. As to the second part of the complaint under Article 6 of the Convention, the Court reiterates that the Convention does not guarantee the right to pursue criminal proceedings against third persons and that Article 6 does not apply to proceedings aimed at instituting criminal proceedings against third persons. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

24. The applicant also complained under Article 8 of the Convention that the prison authorities had not allowed him to have long visits from his wife. Even assuming that the applicant had such a right under Article 8 of the Convention, it is noted that he did not use any of the remedies available to him under domestic law to challenge the refusal of the prison authorities to allow him long visits from his wife. In view of the above, this complaint must be declared inadmissible under Article 35 §§ 1 and 4 for failure to exhaust domestic remedies.

25. The applicant also complained of the following: under Article 10 of the Convention that he had not been informed promptly about the charges against him, under Article 1 of Protocol no. 1 that the police had seized some of his possessions, under Article 3 of Protocol No. 7 that he had been convicted twice for the same offence, and under Article 13 that he had not had an effective remedy in respect of breaches of his Convention rights. However, none of these complaints were substantiated and the Court does not discern any signs of a violation in respect of them. Accordingly, they must be declared inadmissible within the meaning of Article 35 §§ 3 and 4 of the Convention.

IV. 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 1,000 euros (EUR) in respect of pecuniary damage and EUR 15,000 in respect of non-pecuniary damage suffered as a result of his detention in inhuman and degrading conditions.

28. The Government submitted that the applicant was not entitled to any compensation for pecuniary damage since such damages had not been justified in any way by the applicant and because there was no causal link between the breach found in the case and the alleged pecuniary damage claimed. As to the amount claimed for non-pecuniary damage, the Government argued that it was excessively high.

29. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, in view of the breach found in this case it considers it appropriate to award the applicant compensation in respect of non‑pecuniary damage. Deciding on an equitable basis, the Court awards the applicant EUR 3,000.

B. Costs and expenses

30. The applicant also claimed EUR 1,000 for the costs and expenses incurred before the domestic courts and the Court, EUR 350 of which represented lawyer’s fees and the rest secretarial expenses.

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

32. The Court notes that the applicant did not submit any evidence of having paid the representative’s fees or even that such fees were due. Accordingly, regard being had to the information in its possession and the above-mentioned criteria, and the fact that the applicant clearly incurred some secretarial expenses, the Court considers it reasonable to award the applicant the sum of EUR 100 for incidental 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. Joins the applications;

2. Declares the complaint under Article 3 of the Convention in respect of the applicant’s detention in Prison no. 13 between 1 March 2007 and 1 April 2008 admissible and the remainder of the applications inadmissible;

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

4. 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 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 100 (one hundred euros), plus any tax that may be chargeable, 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;

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

Done in English, and notified in writing on 14 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago QuesadaJosep Casadevall              Registrar              President

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