THIRD SECTION
CASE OF STRUC v. THE REPUBLIC OF MOLDOVA
(Application no. 40131/09)
JUDGMENT
STRASBOURG
4 December 2012
FINAL
04/03/2013
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Struc v. the Republic of Moldova,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 13 November 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 40131/09) 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 Oleg Struc (“the applicant”), on 10 June 2009.
2. The applicant was represented by Mr A. Briceac, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
3. The applicant alleged, in particular, that he had been ill-treated by the police and left without medical assistance in inhuman conditions of detention, that he had been detained unlawfully, and that the proceedings in his criminal case had been excessively long.
4. On 17 December 2009 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).
5. Following the resignation of Mr Mihai Poalelungi, the judge elected in respect of Moldova (Rule 6 of the Rules of Court), the President of the Chamber appointed Mr Ján Šikuta to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court).
THE FACTS
6. The applicant was born in 1980 and lives in Bălţi.
7. On 16 August 2006 the applicant was arrested together with another person on suspicion of having committed aggravated hooliganism, which included injuring a third person with a knife. On 18 January 2007 the prosecutor prepared the indictment and sent the case to the trial court.
A. The applicant’s alleged ill-treatment and the investigation thereof
8. In a complaint dated 14 February 2007 the applicant, who was being detained at the time at the Ungheni police station, informed the Ungheni District Court that he had been ill-treated on the same day at around 5 p.m. by officer R.B., who had kicked and punched him, causing head trauma and a bleeding wound, as well as pain in the thoracic region and in his left leg. Two of the applicant’s cellmates (S. and P.) also signed the complaint, confirming that they had seen injuries on the applicant’s body.
9. According to the Government, this complaint was in fact lodged with the prosecutor on 16 February 2007, the applicant stating that he had not complained earlier for fear of further ill-treatment. Only after seeing his lawyer on 16 February 2007 had he complained officially of his alleged ill‑treatment two days earlier.
10. On 16 February 2007 an ambulance was called for the applicant. The doctor found cerebral trauma and head injury, contusion of soft tissue in the thoracic region and on the left thigh, and excoriations.
11. On 27 February 2007 the Ungheni prosecutor’s office found that S., the applicant’s cellmate on 14 February 2007, had confirmed having been told by the applicant of the beating on that date and having seen the injury on the applicant’s head. He also stated that the applicant had asked staff at the police station to call for an ambulance, which they had refused to do. It was also established that the applicant had been taken out of his cell at around 5 p.m. on 14 February 2007 and taken to the office of B., the deputy head of the Ungheni police station. R.B. had declared that he had been in Chişinău at the relevant time and had not ill-treated anybody. According to a medical report of 19 February 2007 an excoriation had been found on the right side of the applicant’s head, which had been caused by the applicant being hit – or hitting against – a blunt object, possibly on 14 February 2007. On 23 February 2007 the applicant had been seen by a neurologist, who had found no signs of head trauma. Finally, the prosecutor found that the applicant had “constantly simulated feeling unwell, and had been escorted to the Ungheni polyclinic on numerous occasions, the doctors finding no illness”. The prosecutor decided not to initiate a criminal investigation against officer R.B. since he had not committed any offence. The applicant challenged that decision before the Ungheni District Court.
12. On 12 April 2007 the applicant’s mother complained to the Prosecutor General’s Office about the refusal of the Ungheni prosecutor’s office to initiate a criminal investigation. On 10 May 2007 the Prosecutor General’s Office replied that that question had been examined and rejected in a well-founded decision.
13. On 13 February 2008 the prosecutor again refused to initiate a criminal investigation into the applicant’s alleged ill-treatment.
14. On 29 February 2008 the Ungheni District Court rejected the applicant’s complaint against the prosecutor’s decision of 27 February 2007 as not complying with the statutory requirements concerning preliminary complaints to a hierarchically superior prosecutor.
15. On 16 June 2009 the applicant’s lawyer asked for the quashing of the prosecutor’s decisions of 27 February 2007 and 13 February 2008. He relied on the findings of the Supreme Court of Justice in its judgment of 9 September 2008 (see paragraph 36 below).
16. On 18 June 2009 the Ungheni prosecutor’s office rejected the applicant’s lawyer’s request as unfounded, finding that it had not been established that the applicant had been ill-treated. On 24 June 2009 the applicant’s lawyer challenged that decision before the Ungheni District Court. On 7 July 2007 the Ungheni District Court granted his request and quashed the prosecutor’s decisions of 27 February 2007, 13 February 2008 and 16 June 2009.
17. On 21 August 2009 a criminal investigation into the applicant’s complaint of ill-treatment was initiated.
18. On 12 October 2009 the applicant asked to be officially declared an aggrieved party in those criminal proceedings. On 20 October 2009 the Ungheni District Court ordered the applicant’s transfer from prison no. 13 in Chişinău to the remand centre of the Ungheni police station for twenty days in order for him to be officially declared an aggrieved party and to interview him.
19. On 17 December 2009 the applicant was officially recognised as an aggrieved party by a prosecutor from the Ungheni prosecutor’s office on the premises of that office. On 21 December 2009 the applicant asked for R.B.’s dismissal from his functions and his arrest. This was refused on 22 December 2009.
20. On 23 December 2009 the applicant asked for the case to be transferred to the Prosecutor General’s Office in order to ensure against possible influence by R.B. on prosecutors in the Ungheni prosecutor’s office, since R.B. was still a police officer at the Ungheni police station. The applicant also complained of the absence of his lawyer during a cross-examination of himself and R.B., during which the latter had allegedly threatened the applicant with violence, in the presence of the prosecutor, because of his complaints; the prosecutor did not react. This request was rejected on 1 February 2009 by the Ungheni prosecutor’s office.
21. On 31 December 2009 the prosecutor decided not to initiate a criminal investigation against R.B. since no signs of a crime had been established. The applicant challenged that decision before the Ungheni District Court. On 17 June 2010 that court rejected the applicant’s complaint as unfounded.
B. Conditions of detention and the applicant’s medical condition and medical assistance received during his detention
22. The applicant claims that owing to his conditions of detention he became ill with pulmonary tuberculosis and pneumonia. The applicant was held at five different detention facilities during his detention; he did not specify the dates of transfers from one such facility to another. It appears from his correspondence with various State authorities and the medical records that he was detained in prison no. 13 from 30 October until 14 November 2006, following which he was transferred back to the Ungheni police station. On 5 April 2007 he was transferred to prison no. 11 and on 16 November 2007 to prison no. 13.
23. On 25 December 2006 the applicant’s mother asked the investigating judge to order her son’s release in order to allow him to follow a course of treatment for the two illnesses. The applicant made similar requests on 7, 12 and 20 February 2007.
24. On an unknown date prior to 13 February 2007 a doctor specialising in respiratory diseases in the Ungheni polyclinics wrote to the Ungheni prosecutor’s office stating that he had examined the applicant on 26 October and 21 December 2006 and had found no signs of active tuberculosis, but only the remaining traces of a previous episode of tuberculosis. On 13 February 2007 a prosecutor from the Ungheni prosecutor’s office rejected the applicant’s complaints, finding that he had been taken to the Ungheni polyclinic on several occasions after he complained of having tuberculosis. Moreover, he had been visited on several occasions by ambulance doctors while in detention. On none of these occasions had the diagnosis of tuberculosis been confirmed, and he had thus not been registered with a specialist doctor. He had been given the necessary treatment for his chronic bronchitis.
25. According to a medical certificate issued on 19 December 2006, he was sent from the Ungheni police station to prison no. 11 for “retreatment”; the certificate gave his diagnosis as “pulmonary tuberculosis” and stated that treatment had been prescribed.”
26. On 30 March 2007 a prosecutor from the Ungheni prosecutor’s office wrote to the head of the Ungheni police station stating that on 22 March 2007 it had been established that persons detained in that station were allowed only twenty minutes a day of exercise instead of an hour as required by law. Moreover, the cells smelled bad, which was a sign of poor ventilation and inadequate disinfection.
27. On 11 March 2010 the applicant asked to be transferred to the hospital for detainees (prison no. 16 in Pruncul), but received no reply. He made another such request on 22 March 2010. In reply, he was informed on 24 March 2010 by the head of prison no. 3 in Leova that he would be transferred shortly thereafter. On 19 April 2010 the applicant complained to the prison authorities that he had still not been transferred. On 3 May 2010 he complained to the head of prison no. 6 in Soroca about threats to his life. He was then transferred to prison no. 3 in Leova. On 6 May 2010 the applicant complained to the Prosecutor General’s Office about his conditions of detention and of an alleged violation of his right to make telephone calls. On 24 September 2010 he was allegedly beaten while taking his daily walk, while the prison guards were absent for an unexplained reason.
28. In a letter to the Government Agent dated 23 March 2010 the head of the Penitentiaries Department described the conditions of the applicant’s detention and gave details of his medical treatment. According to that letter, at the time the applicant was being detained in prison no. 13 in cells corresponding to the legal requirements and which were well lit and ventilated, with sufficient heating and access to tap water and a toilet separated from the rest of the cell. The applicant had been given medical assistance; the list of various medical check-ups and interventions spanned more than five pages. Special attention was given by the prison doctors to verifying whether the applicant’s tuberculosis had reoccurred. To that end, tests specifically aimed at discovering the presence of active tuberculosis, including X-ray examinations, had been carried out upon his arrival at prison no. 13 on 7 September 2006 and every day between 26 and 29 October 2006, then on 30 November and 1 December 2006, 26 February 2007 and on a regular basis thereafter. On none of these occasions had there been a confirmation of the diagnosis of active tuberculosis. The tests showed only the presence of the remaining traces of the tuberculosis from which the applicant had suffered in 2001 in Russia. For that reason the applicant was not registered in the national Information System for the Monitoring of Tuberculosis. The letter contained annexes with medical certificates confirming the description detailed above. The applicant did not submit evidence contradicting the above.
C. The applicant’s complaints about the lawfulness of his detention
29. On an unspecified date the applicant complained to the Bălţi Court of Appeal that he had been detained without a legal basis between 30 October and 14 November 2006, since no valid court order for his arrest had been made covering that period. He asked for a criminal investigation to be initiated into his unlawful detention. The complaint was forwarded to the Ungheni prosecutor’s office, which rejected it on 15 August 2007.
30. On 17 August 2009 the applicant asked the Prosecutor General’s Office to quash the prosecutor’s decisions of 27 June and 15 August 2007 concerning the refusal to initiate a criminal investigation into his unlawful detention. It is unclear whether he received a reply.
31. On 18, 19 and 24 August 2009 the applicant complained to the Prosecutor General’s Office, the Ungheni District Court and the Bălţi Court of Appeal, asking to be released immediately in view of the judgment adopted by the Supreme Court of Justice on 9 September 2008 (see paragraph 36 below), but this was refused.
D. Criminal proceedings against the applicant
32. On 4 April 2007 the applicant was convicted by the Ungheni District Court and sentenced to nine years’ imprisonment. The court found that during the night of 13 August 2006 he had committed several crimes together with another person: they had first insulted the staff of a bar and smashed beer bottles there, then they had started an argument with customers in another bar and the applicant had struck one of them with a knife. Later that night they insulted and hit a girl after she had refused their sexual advances. The court also decided to maintain the preventive measure of arrest in respect of the applicant.
33. The applicant’s sentence was upheld by the Bălţi Court of Appeal on 6 June 2007.
34. On 4 December 2007 the Supreme Court of Justice quashed the judgment of the Court of Appeal, finding that that court had failed to deal with the applicant’s complaint that he had been ill-treated. The case was sent for a retrial by the second-instance court.
35. On 12 March 2008 the Bălţi Court of Appeal upheld the first-instance court’s judgment. It found that the applicant’s ill-treatment had not been established, as was clear from the decisions not to initiate a criminal investigation taken by the prosecutor on 27 February 2007 and 13 February 2008.
36. On 9 September 2008 the Supreme Court of Justice quashed that judgment. It found that the lower court had failed to establish the fact that the prosecution had not carried out an effective and speedy investigation into the applicant’s complaint of ill-treatment, in spite of the evidence in support of that complaint. That evidence was sufficient, in the court’s view, to establish that the applicant had been ill-treated by the police, in breach of Article 3 of the Convention. In his decision of 29 February 2008, the investigating judge had refused to examine the applicant’s complaint in substance and had not forwarded it to the competent prosecutor, as required by law, but had rejected it. Moreover, the prosecutor’s reasons for refusing to initiate a criminal investigation were contradicted by the findings he had made, establishing that injuries had been caused to the applicant while he had been in detention and therefore under the control of the police. The court also found that the applicant’s rights under Articles 6 and 13 of the Convention had been breached. In the operative part of its judgment the court did not mention any violation of the applicant’s rights, but sent the case for re-examination.
37. On 20 January 2010 the Bălţi Court of Appeal partly accepted the applicant’s appeal, upholding his conviction but reducing his sentence to seven years’ imprisonment.
38. On 16 June 2010 the Supreme Court of Justice rejected his appeal in cassation. It noted that the Court of Appeal had taken into consideration the findings of the Supreme Court of Justice in its judgment of 9 September 2008 and had carefully assessed all the evidence in the file before reaching its conclusion. That judgment was final.
E. The applicant’s civil action for compensation
39. On 9 December 2011 the applicant lodged a civil action against the Ministry of Finance claiming compensation for the excessive length of the criminal proceedings in his case. On 13 February 2012 Chișinău Court of Appeal accepted his claim and awarded him 5,000 Moldovan lei (MDL, approximately 317 Euros (EUR) at the time) in compensation for the non-pecuniary damage caused to him, as well as MDL 2,000 (EUR 127) for legal costs. That judgment was confirmed by the final judgment of the Supreme Court of Justice on 11 April 2012.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE APPLICANT’S ILL-TREATMENT AND THE INVESTIGATION THEREOF
40. The applicant complained that he had been ill-treated by the police and that the investigation into his complaint of ill-treatment had been ineffective. He relied on 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’s objections
41. The Government submitted that these complaints had been lodged outside the six-month time-limit established in Article 34 of the Convention. They considered that the judgment of the Supreme Court of Justice of 9 September 2008 (see paragraph 36 above), on which the applicant had put much emphasis, had been the final domestic decision in respect of the complaints under Article 3. Therefore, the present application (lodged on 10 June 2009) was out of time.
42. The Court notes that the judgment referred to by the Government was not the final one since it sent the case for a retrial by the lower courts (see paragraph 36 above). The final decision was adopted only on 16 June 2010 (see paragraph 38 above). Accordingly, this objection must be dismissed.
43. The Government also submitted that owing to the clear findings of the Supreme Court of Justice in its judgment of 9 September 2008 (see paragraph 36 above), the applicant had lost his victim status in respect of his complaints under Article 3 of the Convention.
44. The Court observes that that judgment resulted in the sending of the case for a retrial, without a formal declaration in the operative part that any of the applicant’s rights had been breached. Moreover, in the absence of a court finding of a breach of the applicant’s rights, no compensation could be awarded to him. He therefore can still claim to be a victim of a violation of his rights under the Convention. It follows that this objection must also be dismissed.
45. In their observations of 7 December 2010 the Government submitted that the applicant’s complaints under Article 3 of the Convention had been lodged prematurely with the Court, while the domestic investigation was still ongoing. They therefore asked the Court to reject these complaints due to the failure to exhaust available domestic remedies.
46. The Court notes that by the time the parties submitted their final observations (the applicant in September 2010 and the Government in December 2010) a final decision had already been taken in respect of the applicant’s complaints under Article 3 of the Convention (see paragraph 38 above). Accordingly, this objection must also be dismissed.
47. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
1. The submissions of the parties
48. The applicant complained that he had been ill-treated while detained, as confirmed by medical evidence, as well as by the statements of his cellmates. He submitted that officer R.B. was responsible for his ill-treatment and that the investigation into his complaint had not been effective.
49. He also considered that at prison no. 13 he had not been given the medical assistance required by his condition, particularly in respect of his tuberculosis.
50. The Government relied on the findings of the domestic courts, which had dismissed the applicant’s allegations of ill-treatment. They considered that their admissibility objections had made it unnecessary to comment further on the merits of the complaints under Article 3 of the Convention.
51. As to the conditions of the applicant’s detention and the medical treatment given to him, they noted that in his initial application the applicant had failed to even specify which of the detention facilities he had had in mind when making his complaint, since he had been detained in three different prisons, one police station and two hospitals during the relevant time. Moreover, he had failed to describe those conditions of detention in any detail. In any event, he had benefited from appropriate conditions and had been given extensive medical assistance.
2. The Court’s analysis
(a) The applicant’s alleged ill-treatment
52. The Court recalls that where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment (see Bursuc v. Romania, no. 42066/98, § 80, 12 October 2004). It is incumbent on the State to provide a plausible explanation of how the injuries were caused, failing which a clear issue arises under Article 3 of the Convention (Pruneanu v. Moldova, no. 6888/03, § 44, 16 January 2007).
53. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII).
54. In the present case, the applicant was arrested on 16 August 2006 and has been detained ever since. Following his complaint on 16 February 2007, on the same day an ambulance doctor found injuries on his body and established that he had suffered head trauma (see paragraph 10 above). On 19 February 2007 an expert report confirmed that the applicant had sustained an injury to his head (see paragraph 11 above). Moreover, the applicant’s cellmates confirmed having seen him injured after he was taken out of his cell on 14 February 2007. It was also confirmed that the applicant had indeed been taken out of his cell on that date (see paragraph 11 above).
55. The Court considers that, in the absence of any other plausible explanation, the above evidence strongly supports the applicant’s submission that he was injured while in detention. While it is primarily for the domestic courts to establish the personal guilt or innocence of specific persons accused of ill-treatment, it is the State’s obligation to ensure against such treatment in detention. The Court must therefore assume that the applicant was ill-treated, as was also found by the Supreme Court of Justice in its judgment of 9 September 2008 (see paragraph 36 above). The foregoing considerations are sufficient to establish a violation of Article 3 of the Convention in its substantive limb.
(b) Investigation into the applicant’s complaint of ill-treatment
56. The Court reiterates that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other agents of the State, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such an investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV).
57. It is beyond doubt that a requirement of promptness and reasonable expedition is implicit in this context. A prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, among other authorities, Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001, and Batı and Others v. Turkey (nos. 33097/96 and 57834/00, § 136, ECHR 2004‑IV (extracts)).
58. In the present case, the Court notes that the applicant’s complaint was registered with the authorities on 16 February 2007. Despite two court decisions indicating the need to investigate the applicant’s allegation of ill-treatment more thoroughly (see paragraphs 34 and 36 above), a prosecutor finally decided to initiate a criminal investigation only on 21 August 2009, which was two-and-a-half years after the complaint had been made. The domestic authorities and the Government did not offer any explanation for that delay. This is inconsistent with the obligation to carry out a prompt investigation as there is a risk that evidence of ill-treatment will disappear as time goes by and the injuries heal (see Pădureţ v. Moldova, no. 33134/03, § 63, 5 January 2010).
59. It is also apparent from the documents in the file that after the initiation of the investigation on 21 August 2009 it took another four months – until 17 December 2009 – for the prosecutor to officially declare the applicant an aggrieved party, so as to allow him to actively participate in that investigation (see paragraph 19 above). Moreover, this procedural step took place two weeks before the official end of the investigation on 31 December 2009, which makes it obvious that the applicant was never truly involved in – or kept properly informed of – the investigation.
60. The above findings are sufficient for the Court to find that the domestic authorities have not satisfied their obligations. There has, accordingly, been a violation of Article 3 of the Convention in its procedural limb too.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN RESPECT OF THE APPLICANT’S CONDITIONS OF DETENTION
61. The applicant complained of a failure to provide him with appropriate medical assistance and of inhuman conditions of detention, contrary to Article 3 of the Convention.
A. Scope of the complaint
62. The Court considers that the new allegations concerning insufficient treatment for tuberculosis in prison no. 16, allegations which the applicant made on an unspecified date after communication of the present application to the respondent Government (see paragraph 27 above) constitute fresh allegations which are outside the scope of the present case. These submissions have been registered as a separate application (no. 20005/12) and will not be examined here.
B. Admissibility
1. The conditions of detention at the Ungheni police station
63. The Court refers to its case-law, as summarised in I.D. v. Moldova (no. 47203/06, §§ 27-31, 30 November 2010), 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 is detained in several facilities during the relevant period of time. It notes that in the present case, aside from the complaint about medical treatment, there were no common characteristics in the description given by the applicant regarding the conditions of his detention in various detention facilities, the applicant having failed to give any detail in respect of all such facilities other than the Ungheni police station. It finds that the applicant’s failure to describe the conditions of his detention after his transfer from the Ungheni police station prevents the Court from examining the entire period of his detention as a “continuous situation” (see I.D. v. Moldova, cited above, § 30). Therefore, his detention at the Ungheni police station, which ended on 5 April 2007 at the latest (see paragraph 22 above), is to be considered as separate from his subsequent detention at various other facilities. The applicant lodged his complaint on 10 June 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 the period of detention at the Ungheni police station ending on 5 April 2007, 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.
2. Conditions of detention after the applicant’s transfer from the Ungheni police station
64. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
C. Merits
65. The Government argued that the applicant had been detained in appropriate conditions, not amounting to treatment contrary to Article 3 of the Convention.
66. In the present case the Court considers that the applicant provided a rather broad and non-specific description of his conditions of detention after his transfer from the Ungheni police station. It recalls that reliance on the findings of the CPT does not of itself, and in the absence of evidence of individual suffering of the intensity required for a finding of a breach of Article 3, provide a basis for a conclusion that there has been a breach of Article 3 of the Convention (see Gorea v. Moldova, no. 21984/05, § 50, 17 July 2007).
67. The only specific claim made by the applicant concerning conditions of detention after his transfer from the Ungheni police station relates to the alleged insufficiency of the medical assistance given to him.
68. The Court notes, however, that the Government submitted a long list of instances where the applicant had been given medical assistance whenever the need had arisen, with special emphasis on monitoring any possible recurrence of tuberculosis (see paragraph 28 above). In the Court’s opinion, it has not been proved that the applicant was deprived of necessary medical assistance.
69. In view of the above considerations, the Court is not convinced that the conditions of the applicant’s detention, including the medical assistance which he received, constituted treatment which exceeded the minimum threshold for Article 3 of the Convention to apply. Accordingly, there has been no violation of that provision in this respect.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
70. The applicant complained that he had been detained without a legal basis in the period between 30 October and 14 November 2006 and subsequently, after the case file had been submitted to the trial court. He also complained that the authorities had failed to release him immediately after the judgment of the Supreme Court of Justice of 9 September 2008. He relied on Article 5 § 1 of the Convention.
Admissibility
71. The Court notes that in its judgment of 4 April 2007 the first-instance court applied the preventive measure of arrest to the applicant (see paragraph 32 above). The judgment of 9 September 2008 relied on by the applicant, while noting that there were grounds to believe that he had been ill-treated, ordered a re-examination of the case by the second-instance court, without ordering his release (see paragraph 36 above). While the second-instance court’s judgments were quashed twice, none of the higher courts quashed the judgment of the first-instance court, nor its decision in respect of the preventive measure. It follows that after 4 April 2007 the applicant was detained on the basis of a validly adopted court order.
Therefore, this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
72. As for the lawfulness of the applicant’s detention prior to 4 April 2007, the Court notes that on 15 August 2007 a prosecutor rejected a complaint in that respect (see paragraph 29 above). The applicant apparently did not challenge that decision. Even assuming that he had no further remedy before a court, any complaint about his detention prior to 4 April 2007 should have been lodged with the Court within six months of the date of the prosecutor’s decision of 15 August 2007 in order to comply with the requirements of Article 35 of the Convention. Since the present application was lodged on 10 June 2009, this part of the complaint under Article 5 must be dismissed as having 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.
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
73. The applicant complained that the proceedings in his criminal case had been excessively long. He relied on Article 6 § 1of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
A. Admissibility
74. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
75. The applicant submitted that the proceedings had lasted for almost four years, which was excessively long.
76. The Government contested that argument, arguing that the applicant had not substantiated his complaint.
77. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
78. In the present case, the Court notes that the period to be taken into consideration started on 13 August 2006, when the criminal proceedings were initiated, shortly before the applicant was arrested. They ended with the final judgment of the Supreme Court of Justice on 16 June 2010. Therefore, they lasted approximately three years and ten months for three levels of jurisdiction.
79. The Court also observes that the case was of a certain complexity, involving two accused and three separate alleged crimes (see paragraph 32 above).
80. The Court further observes that the case was sent twice for a rehearing by the second-instance court, both times for essentially the same reason – that of failing to properly deal with the applicant’s complaint of ill-treatment (see paragraphs 34 and 36 above). It considers that the delay caused by the failure to deal with the issues revealed by the higher courts and the resulting repeated annulment of the judgments adopted by the lower courts may, in principle, raise an issue under Article 6 § 1 of the Convention. However, taking into consideration the relatively short overall duration of the proceedings, the complexity of the case, the fact that it was examined at three levels of jurisdiction, with a final judgment adopted in less than four years, and the compensation awarded by the domestic courts (see paragraph 39 above), the Court is unable to conclude that there has been a violation of Article 6 § 1 in the present case.
Accordingly, there has been no violation of that provision.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
81. The applicant argued that he had not had an effective remedy before a national authority in respect of the breach of Article 3 of the Convention. He relied on Article 13, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ....”
A. Admissibility
82. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
83. The applicant referred to the Court’s findings in Ostrovar v. Moldova (no. 35207/03, § 112, 13 September 2005), where it found a violation of Article 13 of the Convention in respect of the absence of effective remedies for ill-treatment in Moldova.
84. The Government contested that argument, noting that in the absence of an arguable claim under Article 3 of the Convention there could be no independent finding of a violation of Article 13.
85. The Court found above that the applicant’s right not to be subjected to ill-treatment and to benefit from an effective investigation of his complaints of ill-treatment was breached by the State. The applicant’s complaints in this regard were therefore “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131).
86. The Court has already found that under the domestic law a person can claim compensation for pecuniary or non-pecuniary damage only if the damage was caused by illegal acts. Accordingly, no civil remedy independent of the results of the criminal investigation was available to the applicant. At the same time, in the present case the criminal investigation conducted by the domestic authorities concluded that there had been no illegal act. Accordingly, any civil action against R.B. or other persons would have been ineffective (see Pruneanu v. Moldova, no. 6888/03, § 69, 16 January 2007).
87. In such circumstances, the Court concludes that the applicant did not have an effective remedy under domestic law to enable him to claim compensation for his ill-treatment as regards the events that took place on 14 February 2007, regardless of the course of the criminal investigation (see Corsacov v. Moldova, no. 18944/02, §§ 80-82, 4 April 2006, and Pruneanu, cited above, § 70). Accordingly there has been a violation of Article 13 of the Convention as regards the applicant’s complaints concerning ill-treatment.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
88. 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
89. The applicant claimed 86,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. He noted that he did not have any evidence of pecuniary damage in the form of medication he had bought to treat his illnesses obtained in detention. As to non-pecuniary damage, he submitted that he had suffered as a result of the ill-treatment, and also as a result of the ineffective investigation, the inhuman conditions of detention and the failure to provide him with appropriate medical assistance, as well as his unlawful detention and the excessive length of the proceedings against him. He also claimed to have been subjected to additional suffering by the fact that he had feared for his life after complaining about officer R.B.
90. The Government submitted that no compensation was due in the absence of a violation of any Convention right. In any event, the sum claimed was clearly excessive in the light of the Court’s case-law in respect of Moldova.
91. The applicant has not submitted any evidence in support of his claim for pecuniary damage. Accordingly, the Court makes no award on that account. Having regard to the violations found above, the Court considers that an award for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis the Court awards the applicant EUR 8,000.
B. Costs and expenses
92. The applicant claimed EUR 2,800 for legal costs. He submitted a detailed list of the time spent by his lawyer on his case (forty hours at a rate of EUR 70 per hour).
93. 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 submitted concerned representation in the domestic criminal proceedings.
94. The Court reiterates that in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred and are reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII).
95. In the present case, regard being had to the itemised list submitted by the applicant concerning her lawyer’s representation before the Court and the above criteria, the Court awards him EUR 1,400 for costs and expenses.
C. Default interest
96. 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 complaints under Articles 3 concerning the applicant’s ill‑treatment and the investigation thereof, as well as the conditions of his detention after 5 April 2007, 6 § 1 and 13 of the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 3 of the Convention in respect of the applicant’s ill-treatment and the investigation thereof;
3. Holds that there has been no violation of Article 3 of the Convention in respect of the applicant’s conditions of detention;
4. Holds that there has been no violation of Article 6 § 1 of the Convention;
5. Holds that there has been a violation of Article 13 of the Convention;
6. 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 the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,400 (one thousand four 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;
7. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 4 December 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy