CASE OF POCASOVSCHI AND MIHAILA v. THE REPUBLIC OF MOLDOVA AND RUSSIA

SECOND SECTION

CASE OF POCASOVSCHI AND MIHAILA v. THE REPUBLIC OF MOLDOVA AND RUSSIA

(Application no. 1089/09)

JUDGMENT

STRASBOURG

29 May 2018

FINAL

29/08/2018

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

In the case of Pocasovschi and Mihaila v. the Republic of Moldova and Russia,

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

Robert Spano, President,
Paul Lemmens,
Ledi Bianku,
Işıl Karakaş,
Nebojša Vučinić,
Valeriu Griţco,
Dmitry Dedov, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 7 May 2018,

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

PROCEDURE

1. The case originated in an application (no. 1089/09) against the Republic of Moldova and the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Moldovan nationals, Mr Ruslan Pocasovschi and Mr Ion Mihăilă (“the applicants”), on 19 December 2008. While initially the applicants’ representative indicated that they intended to submit the application also in respect of 141 other applicants, they did not submit any details about such other applicants. The case before the Court thus concerns only the two applicants mentioned above.

2. The applicants were represented by Mr A. Briceac and Mr T. Cârnaț. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.

3. The applicants alleged, in particular, that they had been held in inhuman conditions of detention and that the civil proceedings which they had brought had been excessively long.

4. On 13 October 2009 the application was communicated to the Governments.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1975 and 1976 and live in Cahul and Cetireni respectively.

6. The facts of the case, as submitted by the parties, may be summarised as follows.

A. Conditions of the applicants’ detention

7. The applicants were convicted by Moldovan courts and, at the time of the events, were serving their sentences in prison no. 8 situated in the town of Tighina (Bender), in the Transdniestrian region of the Republic of Moldova. The town is situated in the security zone under the control of peacekeepers from Moldova, Russia and the self-proclaimed “Moldavian Republic of Transdniestria” (“MRT”)[1]. Prison no. 8 is under the exclusive control of the Moldovan authorities. By October 2003 some 236 people were detained there; some of them, such as the applicants, were ill with tuberculosis.

8. On 23 September 2002 the Bender local administration, which is subordinated to the “MRT” authorities, disconnected prison no. 8 from the electricity, water and heating supplies. As a result, the detainees were deprived of conditions of basic hygiene, and the food they received did not meet the minimum standards of quality.

9. The prison authorities informed the Moldovan Ministry of Justice, the President’s Office, the Organization for Security and Co-operation in Europe (OSCE), the Red Cross and the Council of Europe, as well as local human rights organisations, with a view to obtaining assistance in resolving the problem arising from the disconnection from the town’s utilities network.

10. On 12 August 2003 the Bender prosecutor’s office (which forms part of the official Moldovan authorities) informed the Helsinki Committee for Human Rights in Moldova (“the CHDOM”), for which the applicant’s representative worked, that, as a result of pressure from the OSCE, the Bender authorities had reconnected the prison to the electricity and water supply systems on 23 February 2003. On 10 July 2003 the last of the people who were ill with tuberculosis were transferred to a newly-built hospital wing in Pruncul prison hospital, situated in Moldova. According to the head of prison no. 8, some 236 healthy detainees, including the applicants, remained in the prison after that date. However, also on 10 July 2003, the local authorities disconnected prison no. 8 from the electricity and water supply systems again, without any warning. The “MRT” authorities insisted that the prison needed to be closed down.

11. On 15 September 2004 Mr Pocasovschi (the first applicant) was transferred to another prison. He was released on parole on 14 April 2005. Mr Mihăilă (the second applicant) was transferred to another prison on 1 March 2004 and was released on parole on 28 March 2005.

B. Criminal proceedings against those responsible for disconnecting prison no. 8 from the utilities systems

12. On 21 July 2003 the applicants’ representatives asked the Moldovan Prosecutor General’s Office to initiate criminal proceedings against those responsible for disconnecting prison no. 8 from the utilities systems. On 12 August 2003 the Bender prosecutor’s office replied in general terms, describing the difficult situation with regard to prison no. 8 and the unsuccessful negotiations with the local authorities.

13. On 29 August 2003 the CHDOM asked the Bender District Court (which is part of the Moldovan court system) to order the prosecutor’s office to remedy the human rights violations taking place in prison no. 8.

14. On 7 October 2003 the head of prison no. 8 informed the court that, owing to insufficient access to water and electricity, detainees in his institution could not receive appropriate medical assistance or food of a sufficient standard, or maintain proper hygiene.

15. On 31 October 2003 the Bender District Court ordered the prosecutor’s office to initiate criminal proceedings against those responsible for disconnecting prison no. 8 from the utilities supply. That decision was upheld by the Bender Court of Appeal on 18 December 2003.

16. According to the Moldovan Government, on 18 November 2003 the Bender prosecutor’s office contacted the “MRT” authorities with a view to prosecuting those responsible for disconnecting prison no. 8 from the utilities. It also informed the Joint Control Commission (see Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, § 90, ECHR 2004‑VII) of the need to include the subject on its agenda. On 20 December 2003 the “MRT” prosecutor’s office refused to open a criminal investigation on the ground that no crime had been committed.

17. On 19 January 2004 the relatives of two of the detainees made another complaint to the CHDOM regarding the inhuman conditions of detention in prison no. 8. That letter was forwarded to the Moldovan Ministry of Justice, the President of the Republic of Moldova and the Prosecutor General’s Office, along with a request to take all necessary steps to immediately improve the conditions of detention.

18. On 1 March 2004 the CHDOM asked the Bender prosecutor’s office what action had been taken pursuant to the above-mentioned court decisions. On 12 March 2004 the Bender prosecutor’s office replied that all the material was at the Prosecutor General’s Office, which was dealing with the case.

19. On 15 March 2004 the Ministry of Justice informed the CHDOM that the State was making all necessary efforts to ensure acceptable conditions of detention at prison no. 8, and that, at that time, the conditions of detention at that prison did not differ from those at other prisons in the Republic of Moldova.

20. On 20 April 2004 the Prosecutor General’s Office informed the CHDOM that it had lodged an extraordinary appeal with the Supreme Court of Justice against the decisions of 31 October 2003 and 18 December 2003. On 3 August 2004 the Supreme Court of Justice upheld those decisions.

21. On 1 June 2009 the CHDOM asked the Prosecutor General’s Office what actions had been undertaken after the judgment of the Supreme Court of Justice of 3 August 2004. On 14 July 2009 the Bender Prosecutor’s Office replied that the actions of the “MRT” authorities could not be investigated by the Moldovan authorities as long as the “MRT” authorities de facto controlled the territory of the “MRT”.

C. Civil action lodged by the applicants

22. On 15 March 2004, on behalf of 141 detainees in prison no. 8, including the applicants, the CHDOM lodged a civil action against the Ministry of Justice, asking for the finding of a violation of the rights guaranteed under Article 3 of the Convention. The detainees had authorised the organisation to act on their behalf. The CHDOM also asked for an improvement in the conditions of detention and for the payment of compensation in the amount of 15,000 Moldovan lei (MDL – approximately 1,000 euros (EUR) at the time) for each detainee.

23. On 16 and 22 April 2004 the President of the Bender District Court asked the Supreme Court of Justice to decide whether the case should be examined by another court. On 19 May 2004 the Supreme Court of Justice rejected the request and left the case with the Bender District Court.

24. On 18 June 2004 the Bender District Court decided to transfer the case to the Buiucani District Court in Chişinău, in accordance with territorial competence principles. The claimants (the detainees) and their representatives were not consulted. On 22 June 2004 the CHDOM challenged that decision. On 14 July 2004 the Bender Court of Appeal set aside the decision of 18 June 2004 and ordered the urgent examination of the case by the Bender District Court.

25. On 28 December 2004 the Bender District Court declined to examine the claim because it did not satisfy legal requirements. On 1 February 2005 the Bender Court of Appeal set aside that decision.

26. After February 2005 many of the 141 detainees who were plaintiffs in the above-mentioned civil action were transferred to other prisons in various parts of the country, which made it more difficult for the CHDOM to obtain confirmation of each individual’s power of attorney, as requested by the Bender District Court. In such circumstances, the CHDOM selected nine cases (including those of the applicants in the present case) with which to continue the proceedings. Since the individuals concerned were also detained in separate prisons, the CHDOM made an application for their cases to be examined separately, an application which the Bender District Court refused on 11 November 2005.

27. On 26 April 2006 the Bender District Court rejected the CHDOM’s application to summon as defendants the individuals from the relevant local “MRT” authorities in Bender responsible for violating the detainees’ rights. On an unknown date in June 2006 the Bender Court of Appeal set aside that decision and ordered the summoning as defendants of A.P., A.M. and V.M., the heads of the relevant local “MRT” authorities in Bender. According to the applicants, none of these individuals was summoned by the Bender District Court.

28. On 15 December 2006 the judge who had been examining the case withdrew from it. On 18 May 2007 the judge who had taken over the case also withdrew from it. Subsequently, all other judges of the Bender District Court withdrew, allegedly for fear of persecution by the “MRT” authorities. As a result, the Bender Court of Appeal was asked to decide which other court could examine the case. On 13 November 2007 the Bender Court of Appeal decided that the case should be examined by the Anenii-Noi District Court.

29. On 26 December 2007 the Anenii-Noi District Court declined to examine the claim because it did not fulfil certain legal requirements. It found in particular that there was a lack of valid powers of attorney in favour of the CHDOM.

30. On 6 March 2008 the CHDOM lodged a reformulated court action in accordance with the legal requirements. It also asked for the Russian Government to be summoned as a defendant in the case, as it had de facto control over the territory of the “MRT”. It claimed EUR 10,000 and EUR 7,000 respectively for the breach of the applicants’ rights. On the same date the Anenii-Noi District Court declined to examine the claim because the powers of attorney issued by the detainees in favour of the CHDOM had expired.

31. On 20 May 2008 the Bender Court of Appeal set aside the decision of 6 March 2008, noting that, in the applicants’ cases, the powers of attorney had been renewed.

32. On 18 June 2008 the Anenii-Noi District Court adjourned the hearing because of the absence of a representative of the Ministry of Justice. The same thing occurred on 29 October 2008. The court also informed the CHDOM that, in a letter dated 2 July 2007, the Ministry of Justice had informed the court that a representative of the Russian Federation could only be summoned via the Ministry of Justice.

33. On 30 December 2008 the Anenii-Noi District Court adopted a judgment in which it allowed the applicants’ claims in part. It awarded each of them damages in the amount of EUR 200, to be paid by the Moldovan Ministry of Finance, and EUR 500, to be paid by the Russian Ministry of Finance.

34. On 30 June 2009 the Bender Court of Appeal quashed that judgment in part. It found that, following the prison’s disconnection from the utilities, the prison administration had no longer been able to offer food or medical treatment for tuberculosis which was of an adequate quality; there had been no access to showers, a very poor situation concerning personal hygiene, and only two hours of electricity per day, ensured by a low-power generator. None of the complaints made to the State authorities had resulted in an improvement in the conditions of detention until much later, as established in 2008. The court acknowledged a breach of the applicants’ right not to be held in inhuman conditions of detention, and increased the award in favour of each of them to MDL 20,000 (EUR 1,266 at the time). It also found that the Russian Federation could not be a defendant in Moldovan courts unless it expressly agreed to that, which was not the case here.

35. On 27 April 2010 the Supreme Court of Justice accepted the applicants’ appeal on points of law in part, and amended the judgment of the lower court. It analysed in detail the length of the civil proceedings (between 22 March 2004 and the date of adopting its own judgment on 27 April 2010), the complexity of the case, how the parties and the courts had contributed to the length of the proceedings, as well as the significant interest at stake for the applicants. The court found that, despite the applicants’ representatives’ actions contributing to the overall length of the proceedings (twenty-six out of the sixty-seven months), a breach of the right to a trial within a reasonable time had taken place, requiring additional compensation which it set at MDL 6,000 (approximately EUR 358 at the time). It did not amend the remainder of the lower court’s judgment.

D. General action undertaken by the Moldovan authorities

36. The Moldovan Government submitted a long list of actions concerning their efforts to assert their sovereignty over the “MRT” territory and ensure that human rights were observed in the region. They also submitted copies of documents concerning prison no. 8 in Tighina/Bender specifically, raising in particular the issue of the prison being disconnected from utilities within the framework of the “5+2” negotiations process (between the OSCE, Russia, Ukraine, the European Union and the USA, in addition to Moldova and the “MRT”) and with various international organisations.

II. RELEVANT REPORTS OF INTER-GOVERNMENTAL AND NON‑GOVERNMENTAL ORGANISATIONS

37. Relevant reports of various inter-governmental and non-governmental organisations concerning the situation in the “MRT” have been summarised in Mozer v. the Republic of Moldova and Russia [GC] (no. 11138/10, §§ 61-68, ECHR 2016).

THE LAW

38. The applicants complained regarding their inhuman conditions of detention (Article 3 of the Convention), the excessive length of the civil proceedings in which they claimed damages (Article 6 § 1) and a lack of effective remedies in respect of these complaints (Article 13 taken in conjunction with Articles 3 and 6 § 1).

I. ADMISSIBILITY

39. The Moldovan Government submitted that the applicants’ complaints at the time of lodging their application had been premature since, at that time, the civil action which they had lodged with the domestic courts was still being examined. The applicants had thus failed to properly exhaust available domestic remedies in the Republic of Moldova. The Moldovan Government also argued that, following the adoption of a final judgment expressly acknowledging the breach of Articles 3 and 6 of the Convention and awarding compensation, the applicants could no longer claim to be victims of a breach by the Republic of Moldova of their Convention rights. The Moldovan Government did not contest that the Republic of Moldova retained jurisdiction over the territory controlled by the “MRT”.

40. The Russian Government argued that the applicants did not come within their jurisdiction and that, consequently, the applications should be declared inadmissible in respect of the Russian Federation. They also submitted that the application should be dismissed as inadmissible ratione temporis, without giving any further details.

A. Jurisdiction

41. The Moldovan Government did not contest that the Republic of Moldova retained jurisdiction over the territory controlled by the “MRT”.

42. For their part, the Russian Government argued that the applicants did not come within their jurisdiction. Consequently, the application should be declared inadmissible ratione personae and ratione loci in respect of the Russian Federation. Moreover, they challenged the Court’s jurisdiction ratione temporis, without any details being given.

43. The Court recalls that the general principles concerning the issue of jurisdiction under Article 1 of the Convention in respect of actions and facts pertaining to the Transdniestrian region of Moldova were set out in Ilaşcu and Others (cited above, §§ 311-19), Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04 and 2 others, §§ 103-07, ECHR 2012 (extracts)) and, more recently, Mozer (cited above, §§ 97-98).

44. In so far as the Republic of Moldova is concerned, the Court notes that in Ilaşcu, Catan and Mozer it found that although Moldova had no effective control over the Transdniestrian region, it followed from the fact that Moldova was the territorial State that persons within that territory fell within its jurisdiction. However, its obligation, under Article 1 of the Convention, to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention, was limited to that of taking the diplomatic, economic, judicial and other measures that were both in its power and in accordance with international law (see Ilaşcu and Others, cited above, § 333; Catan and Others, cited above, § 109; and Mozer, cited above, § 100). Moldova’s obligations under Article 1 of the Convention were found to be positive obligations (see Ilaşcu and Others, cited above, §§ 322 and 330-31; Catan and Others, cited above, §§ 109-10; and Mozer, cited above, § 99).

45. In so far as the applicants complain about the disconnection of prison no. 8 from the public utilities by the local authorities of the “MRT”, the Court sees no reason to distinguish the present case from the above-mentioned cases. Besides, it notes that the Moldovan Government do not object to applying a similar approach in the present case. Therefore, it finds that Moldova has jurisdiction for the purposes of Article 1 of the Convention, but that its responsibility for the acts complained of is to be assessed in the light of the above-mentioned positive obligations (see Ilaşcu and Others, cited above, § 335).

46.  However, unlike in previous cases concerning alleged breaches of the Convention by the “MRT”, the Moldovan authorities in the present case were not limited to only fulfilling their positive obligations as mentioned in the preceding paragraphs. The case is different in that, while not having control over the local authorities in Bender which disconnected prison no. 8 from the utilities, the Moldovan authorities had full control over that prison itself and the detainees there throughout the relevant period. They could have taken measures in the prison itself to cope with the effects of the disconnection from the utilities or they could have transferred the prisoners to other prisons at any time. By choosing to continue to detain the applicants in prison no. 8 without immediate action taken to ensure basic conditions of detention, the Moldovan authorities knowingly exposed them to the conditions which prevailed there after the disconnection from all utilities. In addition to the above-mentioned positive obligations, it was therefore also the direct responsibility of the Moldovan authorities to prevent or redress the alleged violation of the applicants’ rights in that prison.

47. In so far as the Russian Federation is concerned, the Court would normally have to examine in the first place whether the facts fell within the jurisdiction of that State. However, in the particular circumstances of the present case, it considers it unnecessary to determine this issue, since the application must in any event be declared inadmissible insofar as directed against that State, for the reasons mentioned in paragraphs 48-50 below.

B. Compliance with the six-month period for lodging the application in respect of the Russian Federation

48. The Court needs to verify whether the applicants complied with the six-month time-limit for lodging their application, in accordance with Article 35 § 1 of the Convention. It reiterates that the six-month rule stipulated in that provision is intended to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. It protects the authorities and other persons concerned from uncertainty for a prolonged period of time. Finally, it ensures that, in so far as possible, matters are examined while they are still fresh, before the passage of time makes it difficult to ascertain the pertinent facts and renders a fair examination of the question at issue almost impossible (see Jeronovičs v. Latvia [GC], no. 44898/10, § 74, ECHR 2016).

49. Turning to the situation in the “MRT”, the Court notes that in the past it has found a violation of Article 13 of the Convention in respect of the Russian Federation, precisely because it could not establish the existence of effective remedies in that country in respect of Convention breaches committed by the authorities of the “MRT” (see Mozer, cited above, §§ 211 and 218). In the same vein, the Court does not consider the lodging of a complaint in Moldovan courts against another country without the latter’s consent to be involved as a defendant (see paragraph 30 above) to be a remedy. It therefore finds that, in the absence of any effective remedy in Russia, any complaints against that country must be lodged with the Court within six months of the date of the alleged violation or the date when such a violation ended.

50. In the present case, the applicants were transferred to other prisons on 1 March 2004 and 15 September 2004 respectively (see paragraph 11 above) and were thus from these dates on no longer held in allegedly inhuman conditions. However, they lodged their application on 19 December 2008. Therefore, regardless of whether or not the applicants came under the jurisdiction of the Russian Federation, the complaints against that respondent State were lodged outside the time-limit set down by Article 35 § 1 of the Convention, and must be rejected as inadmissible pursuant to Article 35 § 4 of the Convention.

C. Exhaustion of domestic remedies and the applicants’ victim status concerning the application in respect of the Republic Moldova

51. The Moldovan Government submitted that the applicants had not exhausted the remedies available to them in the Republic of Moldova, since they had lodged their application prematurely while domestic proceedings concerning the recognition of the violation of their rights and their claims for compensation were ongoing.

52. The Court reiterates that although, in principle, an applicant is required to have recourse to domestic remedies before applying to the Court and compliance with that requirement is assessed on the date the application was lodged (see Baumann v. France, no. 33592/96, § 47, ECHR 2001‑V), it can accept the fact that the last stage of such remedies may be reached after the lodging of the application but before it is called upon to pronounce on its admissibility (see Karoussiotis v. Portugal, no. 23205/08, §§ 57 and 87-92, ECHR 2011; Rafaa v. France, no. 25393/10, § 33, 30 May 2013; and Cestaro v. Italy, no. 6884/11, § 146, 7 April 2015). It notes that, by the time the present application was examined, the applicants had fully exhausted the domestic remedies available to them in the Republic of Moldova (see paragraph 35 above). Accordingly, this objection is dismissed.

53. The Moldovan Government also submitted that the applicants could no longer claim to be victims of breaches by the Republic of Moldova of their Convention rights, after the domestic courts had expressly acknowledged a breach of Articles 3 and 6 of the Convention and awarded them compensation. The Court considers that this objection is closely linked to the substance of the complaints raised by the applicants. Accordingly, it joins this objection to the merits of the application.

D. Withdrawal of complaint

54. The Court notes that, in their initial application, the applicants complained of a breach of Article 34 of the Convention. However, in their observations they asked the Court not to examine this complaint, because in fact it related to other people who were in the same situation as the applicants but who were not parties in the present case.

55. The Court takes note of the withdrawal of this complaint.

E. Conclusion on admissibility

56. The Court considers that the applicants’ complaints against the Republic of Moldova under Articles 3, 6 and 13 raise questions of fact and law which are sufficiently serious that their determination should depend on an examination of the merits. No other grounds for declaring them inadmissible have been established. The Court therefore declares this part of the application admissible.

II. MERITS

A. Alleged violation of Article 3 of the Convention

57. The applicants complained regarding the inhuman conditions of detention at prison no. 8 in Tighina/Bender, contrary to Article 3 of the Convention, which reads:

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

58. The applicants referred to the prison’s disconnection from the utilities as causing standards to drop to a level which should be considered inhuman treatment, notably due to the lack of hygiene, the poor quality of the food and their inability to have their diseases properly treated (both applicants were ill with tuberculosis at the relevant time). They submitted that in total they had spent twenty-four and seventeen months respectively in inhuman conditions in prison no. 8.

59. The Government submitted that, despite the difficulties created by the disconnection from the utilities, the prison authorities and the Penal Institutions Department had taken immediate action to ensure that the detainees were provided with the minimum necessities such as water, food and heating, which had all been brought in by trucks. Electricity had been produced in situ by four electric generators, and heating had been ensured by thirty-five heaters. Five toilets not requiring connection to the city’s waste disposal system had been built, and the prison’s showers had been rebuilt to function without electricity from the grid or water from the pipeline. All these efforts had been made possible by almost doubling the State’s budget for the running costs of that prison during 2002-2008.

60. Moreover, following its visits on 18 March 2006 and 14‑24 September 2007, the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) had found that, from February 2004 onwards, the Moldovan authorities had taken action to improve the detainees’ situation as much as possible. The Government further submitted that each detainee was warned about the conditions of detention in prison no. 8 and agreed to them before being transferred there, some of them preferring to be held there since it was closer to their homes and relatives, while all those who refused were not placed in that prison. The Government lastly argued that the Moldovan authorities had taken all reasonable measures and had incurred great public expense in order to fulfil their positive obligations under the Convention to ensure that the rights of detainees in prison no. 8 were observed as much as possible, given the hostile actions of the Bender local administration.

61. Insofar as the Government submitted that the applicants were warned about the conditions of detention in prison no. 8 and agreed to them before being transferred there, the Court reiterates at the outset that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (Muršić v. Croatia [GC], no. 7334/13, § 96, ECHR 2016). The Government’s submission could raise the question whether a waiver of the right under Article 3 is possible, notwithstanding the absolute nature of the prohibition. However, even assuming that such a waiver might be possible, the circumstances of the present case do not permit the conclusion that there has been any valid waiver. Indeed, the applicants were deprived of their liberty, and thus within the power of the authorities (see, mutatis mutandis, M.S. v. Belgium, no. 50012/08, § 124, 31 January 2012). As the Court has held with respect to the waiver of certain procedural rights, a waiver must be of the applicant’s own free will and must be established in an unequivocal manner and attended by minimum safeguards commensurate to its importance (see, among others, Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 135, 17 September 2009). However, the Government did not clarify the nature of the guarantees which would assure a free decision by the applicants.

62. The Court notes that the conditions of detention during September 2002-April 2004 were considered by the domestic courts to be inhuman (see paragraph 34 above). Even though the Moldovan Government suggested that the authorities had taken action to improve the conditions of detention, their arguments refer to actions taken after February 2004 (see paragraph 59 above), that is, close to the end of the applicants’ detention in prison no. 8. The Court has no reason to depart from the domestic courts’ assessment of the conditions of detention and finds, as did those courts, that prolonged detention in conditions where access to water, electricity, food, warmth and medication is severely limited amounts to inhuman treatment under Article 3 of the Convention.

63. What remains to be verified is whether, following the express acknowledgment of a violation of Article 3 and the award of compensation, the applicants can still claim to be victims of that violation by the Republic of Moldova.

64. It notes that the applicants complained only regarding the conditions of detention during the prison’s disconnection from the utilities. The Court will take into account only the periods during which they were held in these conditions. There were two such periods: 23 September 2002-23 February 2003 (see paragraphs 8 and 10 above), and 10 July 2003 until the dates of the applicants’ transfer to other prisons (15 September 2004 and 1 March 2004 respectively, see paragraph 11 above). Accordingly, the applicants were held in inhuman conditions for approximately nineteen and thirteen months respectively.

65. Where, as in the present case, the victim status and therefore, the existence of a violation, is linked with the monetary redress afforded at domestic level, the Court’s assessment necessarily involves comparison between the actual award and the amount that the Court would award in similar cases (see, mutatis mutandis, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 181 and 202, ECHR 2006‑V; see also Holzinger v. Austria (no. 1), no. 23459/94, § 21, ECHR 2001‑I).

66. In this connection, the Court notes that the domestic courts awarded the applicants the equivalent of EUR 1,266 in respect of the breach of Article 3 (see paragraphs 34 and 35 above). The Court considers that the sum awarded by the domestic courts is considerably below that generally awarded by the Court in cases in which it has found a violation of Article 3 in respect of the Republic of Moldova concerning conditions of detention, especially considering the particularly harsh conditions of the applicants’ detention and the relatively long period during which they were held in such conditions (see, by way of comparison, Shishanov v. the Republic of Moldova, no. 11353/06, § 143, 15 September 2015, Savca v. the Republic of Moldova, no. 17963/08, § 58, 15 March 2016, and Cristioglo v. the Republic of Moldova, no. 24163/11, § 31, 26 April 2016).

67. In the light of the foregoing, the Court considers that the applicants can still claim to be victims of a violation of Article 3 of the Convention. Accordingly, the Moldovan Government’s objection concerning the applicants’ victim status (see paragraph 39 above) is dismissed.

68. There has accordingly been a violation of Article 3 by the Republic of Moldova in the present case.

B. Alleged violation of Article 6 § 1 of the Convention

69. The applicants also complained of the excessive length of the civil proceedings which they had initiated against the State authorities. They relied on Article 6 § 1 of the Convention, the relevant part of which reads:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

70. The Government submitted that the applicants could no longer claim to be victims of a breach of their right to a hearing within a reasonable time, in view of the express acknowledgment of such a violation by the Supreme Court of Justice and the award made to compensate them for that violation (see paragraph 35 above). In any event, the case had been quite complex given the number of plaintiffs at domestic level, the background of actions by the “MRT” and the applicants’ application to involve Russia as a defendant. Moreover, the applicants’ representatives had contributed to approximately 20% of the delays and had even accepted the defendant’s application for the initial claim to be struck from the court’s docket because they had already prepared a new court action to replace the old one. This had resulted in a new delay in order for the defendants to study the new claim.

71. The Court notes that by 15 March 2004 when the domestic court action was lodged the second applicant was no longer detained in the conditions complained of. The first applicant was detained in such conditions during six more months. Thereafter, their court action did not concern any urgent matter since the courts could only find a breach of the applicants’ rights and award compensation.

At the same time, as found by the Supreme Court of Justice (see paragraph 35 above), the applicants’ representatives contributed to approximately 20% of the delay in examining the court action.

72. Having regard to all the material in its possession, and even assuming that the entire period of approximately six years is to be taken into consideration despite the apparent lodging of a new claim on 6 March 2008 (see paragraph 30 above), taking into consideration the award made in this respect by the Supreme Court of Justice (see paragraph 35 above), as well as the complexity of the case and the CHDOM’s contribution to the overall length of the proceedings, the Court finds that this complaint does 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 manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

C. Alleged violation of Article 13 of the Convention

73. The applicants also argued that they had no effective remedies in respect of their complaint regarding the conditions of detention. They relied on Article 13 of the Convention, which reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

74. The Moldovan Government argued that the applicants had at their disposal domestic remedies in the form of civil court actions to establish detention in inhuman or degrading conditions and claim compensation. They submitted copies of several judgments from cases in which detainees had been successful in obtaining compensation in similar circumstances. Moreover, the applicants’ own court actions had been successful, each having been awarded MDL 20,000, which proved once more the effectiveness of the remedy.

75. The applicants argued that, in order to be effective, the remedies referred to by the Moldovan Government also had to ensure that those responsible for the breaches of their Convention rights (individuals in the “MRT” local administration) were prosecuted. Moreover, they had not obtained an improvement in their conditions of detention while it still mattered.

76. The Court observes that it found violations of Article 13 of the Convention in 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) on account of the lack of effective remedies in the Republic of Moldova in respect of inhuman and degrading conditions of detention. It has underlined that the remedy of a court action in the form suggested by the Moldovan Government does not have a preventive effect in the sense of improving the conditions of an applicant’s detention, only a compensatory effect (see, for instance, Holomiov v. Moldova, no. 30649/05, § 107, 7 November 2006; and Shishanov v. the Republic of Moldova, no. 11353/06, §§ 124-139, 15 September 2015). The remedy is therefore not effective in cases where people are 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).

77. In view of the fact that the first applicant was still detained in prison no. 8 at the time of lodging his claim with the domestic courts on 15 March 2004 (see paragraphs 11 and 22 above), the remedy referred to by the Moldovan Government was not an effective one, since it did not allow for an immediate improvement in the first applicant’s conditions of detention (see the preceding paragraph).

78. There has thus been a violation by the Republic of Moldova of Article 13 taken in conjunction with Article 3 of the Convention in respect of the first applicant (see Shishanov, cited above, §§ 123-139).

79. As for the second applicant, the Court notes that he was transferred from prison no. 8 to another prison on 1 March 2004 (see paragraph 11 above), before he lodged his claim before the domestic courts on 15 March 2004 (see paragraph 22 above). Accordingly, at the time when he initiated his civil action he could not ask for an improvement in his conditions of detention in that prison, but only an acknowledgment of a breach of his rights and compensation. Since domestic law allowed him to seek both, and since he was able to obtain these things in final court judgments, the Court finds that the second applicant had at his disposal available effective remedies.

80. The Court therefore finds that there has been no violation by the Republic of Moldova of Article 13 taken in conjunction with Article 3 of the Convention in respect of the second applicant.

81. As for the applicants’ complaint that the Moldovan authorities failed to properly investigate the actions of the “MRT” officials who disconnected prison no. 8 from the utilities, the Court notes that although the Moldovan courts ordered the prosecutor’s office to initiate criminal proceedings against those responsible for disconnecting the prison (see paragraphs 15 and 20 above), it seems that no further action was undertaken by that office, because of lack of effective possibilities to bring any “MRT” official to justice (see paragraph 21 above). The Court notes, however, that already on 18 November 2003 the Bender Prosecutor’s Office had contacted the “MRT” authorities with a view to prosecuting those responsible, and that on 20 December 2003 the “MRT” prosecutor had refused to open a criminal investigation on the ground that no crime had been committed (see paragraph 16 above).

82. In light of the above, the Court considers that the Republic of Moldova has fulfilled its positive obligation in this respect. There has therefore been no violation of Article 13 in this respect.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

83. 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

84. The first applicant claimed EUR 100,000 from the Moldovan Government and EUR 90,000 from the Russian Government in respect of non-pecuniary damage. The second applicant claimed EUR 80,000 from the Moldovan Government and EUR 70,000 from the Russian Government in respect of non-pecuniary damage. They referred to the suffering and anxiety which they had experienced as a result of the inhuman conditions of detention. They also referred to their fear for their lives, given their inability to have their tuberculosis treated during the relevant time and the fact that the mortality rate among detainees suffering from that disease in prison no. 8 had increased during the relevant period due to the harsh conditions.

85. The Moldovan Government submitted that the applicants had failed to specify the basis for their claim, and that the recognition by the domestic courts of a breach of their rights constituted sufficient just satisfaction. In any event, the sum claimed was excessive in comparison with previous cases against the Republic of Moldova concerning conditions of detention.

86. The Court notes firstly that it has declared all the complaints against the Russian Federation in the present case inadmissible. Accordingly, no award can be made in respect of that State.

87. In respect of the claims against the Republic of Moldova, the Court refers to its finding (see paragraph 66 above) that the award made by the domestic courts was well below that which it would award in similar cases. In the light of all the circumstances, in particular the relatively long period of detention in particularly harsh conditions with a risk to the applicants’ health, and taking into account the sums already awarded by the domestic courts, the Court awards the first applicant EUR 3,000 and the second applicant EUR 1,800 in respect of non-pecuniary damage.

B. Costs and expenses

88. The applicants also claimed EUR 5,160 for costs and expenses incurred before the Court. They annexed a list of hours which their lawyers had spent working on the case (eighty-six hours at an hourly rate of EUR 60).

89. The Moldovan Government submitted that the applicants had presented inconsistent claims regarding legal representation before the domestic courts and this Court. Moreover, they had failed to produce a contract with their lawyers. In addition, during the proceedings, the applicants’ lawyers, being members of a human rights non-governmental organisation (NGO), had submitted to the domestic courts that they were financed by foreign funds, which could be interpreted as saying that they were paid by foreign donors to represent socially vulnerable individuals like the applicants. They should therefore not be able to claim payment for that representation once more from the Government. There was no evidence that the applicants had actually paid any sum of money to their representatives. In any event, the sum claimed was excessive, particularly in view of the fact that the domestic courts had already awarded MDL 5,000 for legal costs. Lastly, the number of hours which the lawyers had spent working on the case was also excessive.

90. According to the Court’s case-law (see for a recent example Merabishvili v. Georgia [GC], no. 72508/13, § 370, ECHR 2017 (extracts)), 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 documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 jointly to cover costs under all heads.

C. Default interest

91. 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 Moldovan Government’s preliminary objection concerning the alleged loss of the applicants’ victim status to the merits of the application and rejects it;

2. Declares the complaints against the Republic of Moldova under Articles 3 and 13 of the Convention admissible, and the remainder of the application inadmissible;

3. Declares the application against the Russian Federation inadmissible;

4. Holds that there has been a violation of Article 3 of the Convention by the Republic of Moldova in respect of both applicants;

5. Holds that there has been a violation of Article 13 of the Convention by the Republic Moldova in respect of the first applicant,

6. Holds that there has been no violation of Article 13 of the Convention by the Republic Moldova in respect of the second applicant;

7. Holds

(a) that the Republic of Moldova is to pay the applicants, 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 Moldovan lei at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros) to the first applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage, and EUR 1,800 (one thousand eight hundred euros) to the second applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred euros) jointly, plus any tax that may be chargeable to the applicants, 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;

8. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 29 May 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıRobert Spano
Deputy RegistrarPresident

[1]. For further details, see Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, ECHR 2004‑VII).

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