CASE OF VERETCO v. THE REPUBLIC OF MOLDOVA

THIRD SECTION

CASE OF VERETCO v. THE REPUBLIC OF MOLDOVA

(Application no. 679/13)

JUDGMENT

STRASBOURG

7 April 2015

FINAL

07/07/2015

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

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

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

Luis López Guerra, President,
Ján Šikuta,
Dragoljub Popović,
Kristina Pardalos,
Johannes Silvis,
Valeriu Griţco,
Iulia Antoanella Motoc, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 17 March 2015,

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

PROCEDURE

1. The case originated in an application (no. 679/13) 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 Fiodor Veretco (“the applicant”), on 10 December 2012.

2. The applicant, who had been granted legal aid, was represented by Mr R. Zadoinov, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

3. The applicant alleged that he was not provided with proper medical care in prison in breach of Article 3 of the Convention. He also complained under Article 5 of the Convention of a breach of his right to liberty and security.

4. On 20 March 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1963 and lives in Seliște.

A. The applicant’s arrest and detention

6. On 28 November 2012 the applicant was arrested by the police at his home and charged with child trafficking. He was accused of recruiting and travelling with four minors aged from 14 to 17 to Ukraine, where the children did agricultural work.

7. On 30 November 2012 the prosecutor applied to the Centru District Court for a warrant for the applicant’s detention in custody. The reasons relied upon by the prosecutor were that the applicant could abscond from prosecution, interfere with the criminal investigation and reoffend.

8. On the same day the Centru District Court issued an arrest warrant for thirty days’ custody. In court the applicant argued that the allegations made by the prosecutor were not supported by any facts and that no evidence had been submitted by the prosecutor. According to the verbatim record, he explicitly asked for access to the supporting evidence attached to the prosecutor’s request for detention, but was refused. He also submitted medical records which stated that he had two broken ribs and was suffering from post-traumatic pneumonia (see paragraph 17 below); he argued that his state of health required treatment in hospital. The court heard Doctor A., who confirmed the applicant’s assessment of his state of health and that it required hospitalisation because the treatment was difficult and lengthy. The prosecutor and the court accepted the medical records as evidence. The court accepted that the applicant’s state of health required medical treatment, but concluded that such care could also be provided at home. The applicant asked to be released on bail, in response to which the court cited the legal provisions which entitled it to remand in custody a person at risk of absconding and of reoffending. The court concluded that the applicant presented such a risk because he was charged with an exceptionally serious offence.

9. The applicant appealed and argued, inter alia, that the detention order was unlawful under Article 177 (11) of the Code of Criminal Procedure because it lacked reasoning referring to the specific case, and because the court had relied only on suppositions and had ignored the proposed non-custodial alternative. The applicant relied on the provisions of Article 308 of the Code of Criminal Procedure, arguing that, contrary to those provisions, the court had refused to provide his representative with any of the contents of the file other than the prosecutor’s request, and did not generally examine such material. He also argued that his state of health required medical treatment which he had not received in custody.

10. On 6 December 2012 the Chișinău Court of Appeal dismissed the applicant’s appeal, relying on the same reasons as the lower court. The court did not reply to any of the contentions made by the applicant in his appeal.

11. On 26 December 2012 the Centru District Court extended the applicant’s detention by thirty days for the same reasons as before. The court dismissed the applicant’s allegations about his health as unsubstantiated, and referred to the previously submitted medical records (see paragraph 8 above) as “some copies of some documents” which could not be accepted as evidence because they did not comply with Article 94 (1) p.6 of the Code of Criminal Procedure (they originated from a source unverifiable in court). The court concluded that Prison no. 13 and the Prisons Department in general had special divisions for medical care which could assist the applicant if necessary.

12. The applicant appealed and argued, inter alia, that the decision was unlawful and in breach of Article 5 § 1 of the Convention, because it did not explain how the cited legal provisions applied to his case and did not state any reasons for refusing the applicant’s request to be released on bail. He also claimed that the court had refused to give him access to the case file and had only examined the prosecutor’s request, contrary to the provisions of the Code of Criminal Procedure. He stated that the court had disregarded valid evidence in respect of his state of health, and asked for Doctor A. to be heard again in appellate proceedings. He also stated that he had not received any medical treatment since his arrest.

13. On 11 January 2013 the Chișinău Court of Appeal upheld the decision of the Centru District Court of 26 December 2012, without answering the points made by the applicant in his appeal.

14. On 22 January 2013 the prosecutor applied for an extension of the applicant’s detention, citing identical reasons to those given previously. However, on 24 January 2013 the Centru District Court refused the request and released the applicant under judicial control. The court found that there was no longer any risk of the applicant’s interfering with the course of the investigation or reoffending, and concluded that the severity of the sanction alone could not justify an extension of his detention. This decision does not appear to have been appealed against.

B. The applicant’s medical condition while in detention and the medical care provided to him

15. From 28 November to 5 December 2012 the applicant was detained in the detention unit (Izolatorul de detenție provizorie, “the IDP”) of the General Police Headquarters. The applicant was transferred to Prison no. 13 on 5 December 2012 and released from detention on 24 January 2013.

16. The parties dispute the applicant’s medical condition.

1. The facts as submitted by the applicant

17. According to the medical records submitted by the applicant, on 1 October 2012 he was diagnosed with thoracic trauma, two broken ribs and a contusion of the right shoulder after he fell while working. On 23 October 2012 he was diagnosed with post-traumatic bronchopneumonia on the right side, fracture of the fourth and fifth right ribs, sub-febrile condition, chest pain after thoracic trauma, and bilateral tuberculosis lung scars. The doctors recommended the applicant stay in bed, have his ribcage tightly bandaged, and have intra-muscular antibiotic treatment for his pneumonia.

18. At the hearing of 30 November 2012, before the Centru District Court, Doctor A. confirmed the applicant’s diagnosis of post-traumatic pneumonia, and stated that it was her medical opinion that he needed inpatient treatment. She confirmed that previous medical records had not contained a similar recommendation. At the same hearing, the applicant stated that he was in pain and could not sleep because of his broken ribs; he was given pain relief medication on only one occasion while in detention.

19. At the hearing of 26 December 2012 before the Centru District Court, the applicant claimed that he had not been visited by a doctor during the whole period of his detention.

20. A note in the medical records dated 14 December 2012 reconfirmed the diagnosis of post‑traumatic pneumonia and stated that the previously prescribed treatment had not been completed.

21. On 22 December 2012 the applicant’s lawyer complained to the prosecutor about the applicant’s detention conditions in Prison no. 13, and in particular about the lack of medical assistance for his broken ribs and acute pneumonia. It is unclear if he obtained a reply.

2. The facts as submitted by the Government

22. The Government disputed the applicant’s diagnosis of pneumonia and cited the findings of the Centru District Court on 26 December 2012, which dismissed the medical records submitted by the applicant as non‑compliant with Article 94 of the Code of Criminal Procedure (see paragraph 11 above).

23. The Government submitted to the Court a medical examination report drawn up upon the applicant’s admission to the IDP on 29 November 2012, according to which the applicant had complained of pain in his right arm and had said he needed pain relief medication twice a day. The examination reported a tuberculosis episode in 2010 and no recent trauma or injuries.

24. An extract from the applicant’s medical record from prison stated that the applicant had been medically examined upon his admission on 5 December 2012; this was when the presumptive diagnosis of tuberculosis lung scars was made. On that occasion the applicant did not report other complaints or previous medical conditions. On 10, 11, 12 and 14 December 2012 the applicant was seen by the prison doctor for tuberculosis recurrence; sputum tested negative for tuberculosis; blood tested negative for syphilis. On 14 December 2012 thoracic microradiography confirmed a bilateral encysted pleurisy (inflammation of the lung lining). The report concluded that there was no active pulmonary tuberculosis and recommended a repeated sputum and microradiography test in six months.

25. The Government submitted that the applicant had never complained about his health, had not presented any medical records, had never requested medical assistance, and asserted that during detention his overall state of health had been satisfactory.

II. RELEVANT DOMESTIC LAW AND PRACTICE

26. Pursuant to Article 177 (11) of the Code of Criminal Procedure, a court must include in its detention order the specific information which motivated the order, the arguments presented by the accused or his representative, and reasons for accepting or rejecting them.

27. Pursuant to Articles 307 and 308 of the Code of Criminal Procedure the prosecutor must submit evidence confirming the reasons which his request for detention or for an extension of detention rely on. Both the request and the material attached to it must be presented to the representative of the accused. Pursuant to Article 312 of the Code of Criminal Procedure, if the evidence for the lawfulness of detention or of its extension are not presented in court the appellate court must quash the imposed preventive measure or its extension and release the arrested person.

28. The relevant provisions of Law no. 1545 (1998) on compensation for damage caused by illegal acts by the criminal investigation authorities, prosecution and courts have been set out in this Court’s judgment in Sarban v. Moldova, no. 3456/05, § 54, 4 October 2005. In the case of Belicevecen v. the Ministry of Finance (no. 2ra-1171/07, 4 July 2007) the Supreme Court of Justice found that a person could claim damages on the basis of Law no. 1545 (1998) only if he or she had been fully acquitted of all the charges against him or her.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

29. The applicant complained under Article 3 of the Convention of inhuman and degrading conditions of detention in Prison no. 13 and in particular that he did not receive adequate medical assistance there. Article 3 of the Convention reads as follows:

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

A. Admissibility

30. The Court notes that in his observations on the merits of the case received on 6 September 2013 the applicant complained about the conditions of detention in Prison no. 13. This new complaint was not part of the initial application, nor was it raised in any of the correspondence before communication of the present application to the respondent Government.

31. The Court reiterates that under Article 35 § 1 of the Convention an application must be introduced within six months of exhaustion of the last “effective remedy” that could be pursued in the respondent state, or, where there are no such remedies, from the date of the act or measure complained of, or knowledge thereof (see D.P. and J.C. v. the United Kingdom (dec.), no. 38719/97, 26 June 2001). Therefore, any complaint concerning the applicant’s detention at Prison no. 13 should have been lodged with the Court within six months of the applicant’s leaving that prison and thus no longer being subjected to the alleged violation (see, for instance, I.D. v. Moldova, no. 47203/06, §§ 27-29, 30 November 2010, Badea v. Moldova (dec.), no. 29749/07, 17 January 2012, Tcaci v. the Republic of Moldova, no. 3473/06, § 56, 15 July 2014). However, the applicant lodged his complaint eight months after his release (see paragraphs 15 and 30 above). It follows that this part of the complaint has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

32. The Court notes that the complaint about the lack of adequate medical assistance 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

33. The applicant submitted that he did not receive any medical treatment for his post-traumatic pneumonia and broken ribs while in Prison no. 13.

34. The Government disputed the applicant’s diagnosis and the validity of the medical documents and submitted that the applicant had been provided with all necessary medical care while in Prison no. 13, including medical examination upon admission and four other medical consultations, which served to confirm that his overall state of health was satisfactory.

35. Article 3 enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV).

36. The Court observes that it cannot be ruled out that the detention of a person who is ill may raise issues under Article 3 (see Mouisel v. France, no. 67263/01, § 38, ECHR 2002-IX). Although this Article cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty by, among other things, providing them with the requisite medical assistance (see Sarban v. Moldova, cited above, § 77, and Khudobin v. Russia, no. 59696/00, § 93, ECHR 2006‑XII (extracts)).

37. The Court has also emphasised the right of all prisoners to conditions of detention which are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured by, among other things, providing the requisite medical assistance (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI).

38. The Court has to determine whether the applicant needed regular medical treatment, whether he was deprived of it as he claims, and, if so, whether this amounted to treatment contrary to Article 3 of the Convention (see for comparison Farbtuhs v. Latvia, no. 4672/02, § 53, 2 December 2004).

39. The Court notes at the outset the disagreement between the parties as to the applicant’s medical condition and the availability of medical care in Prison no. 13. Consequently, the Court will begin its examination of the applicant’s complaint under Article 3 with the establishment of the facts pertinent to this complaint.

40. The Court reiterates that allegations of ill-treatment should be supported by appropriate evidence. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, cited above, § 161).

41. In proceedings before the Court, there are no procedural barriers to the admissibility of evidence, or pre-determined formulae for its assessment. It adopts conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake (see, among others, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005‑VII; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 26, ECHR 2004‑VII; and Akdivar and Others v. Turkey, 16 September 1996, § 168, Reports of Judgments and Decisions 1996‑IV).

42. The Court notes that the applicant has submitted medical records, according to which on 23 October 2012, a month before his arrest, he was diagnosed with post-traumatic pneumonia, broken right ribs, and a contusion on the right arm, and was prescribed antibiotics. The same medical records had previously been submitted to the domestic courts. On 30 November 2012 a doctor confirmed the previous diagnosis in court, and this was accepted by both the court and the prosecutor, as was the evidence supporting it. On 26 December 2012 the applicant relied on the same medical records and on the statements of the doctor, but another judge from the same court dismissed his arguments as unsupported by evidence, taking the view that the medical records originated from a source which could not be verified by the court itself. The court did not refer to the doctor’s statements previously made in court. The appellate court subsequently upheld this finding and refused to rehear the doctor. The Court reiterates that although it is primarily for the national courts to assess the admissibility, relevance and weight of evidence in a case, the risk of misinterpretation of evidence and of expert statements, and of ordering detention without a proper basis, would have been reduced if the doctor had been heard by the courts.

43. The Court notes that the Government have not adduced any evidence to prove wrong the medical conclusions of Doctor A., as submitted before the Centru District Court on 30 November 2012 and accepted by that court. The fact that the same court refused to take those conclusions into account at a later stage does not amount to a different medical opinion concerning the applicant’s state of health. Moreover, the diagnosis made by the prison doctor concurs with the one made by Doctor A. to the effect that the applicant was suffering from a lung inflammation (see paragraph 24). In such circumstances and in the absence of a contradictory medical opinion, the Court sees no reason to doubt the truthfulness of the applicant’s diagnosis as confirmed by Doctor A., according to whom the applicant was suffering from a serious lung inflammation and that he was in need of antibiotics.

44. The Court further notes that the applicant brought his grievances to the attention of the domestic authorities at a time when they could reasonably have been expected to take appropriate measures. His description of his health problems in the requests was detailed and coherent. The authorities possessed a record of his medical history and were aware of the recommendations made by civilian doctors regarding the medical treatment required. Moreover, from the prison record, it is apparent that the applicant developed an inflammation of the lungs (bilateral pleurisy). The Court is therefore not convinced by the Government’s submissions (see paragraph 25 above).

45. Against this background, the Court notes that while the applicant was in detention the prison doctors did nothing more than check the applicant’s tuberculosis and syphilis status. There is no evidence that he was provided with antibiotics or other treatment.

46. The Court observes from the materials submitted before it that the applicant was suffering from pneumonia, a condition which if untreated is life-threatening, due to the high risk of fluid collecting in the lungs and of its becoming infected. In these circumstances, the absence of qualified and timely medical assistance amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.

47. There has accordingly been a violation of Article 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

48. The applicant complained that his detention had not been “lawful” within the meaning of Article 5 § 1 of the Convention. He argued in particular that, contrary to domestic law, his detention had been ordered in the absence of and without the examination of materials from the investigation file. The relevant part of Article 5 § 1 reads:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...”

49. The Government contested that argument. They provided a copy of the file submitted to the investigating judge. It contained the decision to initiate criminal proceedings, the report on the applicant’s arrest, the decision to indict the applicant, and a letter from the Ukrainian border service, informing the Moldovan authorities about the interception of four individuals, of whom one was a minor (aged 17), who had been aided by the applicant to cross the border unlawfully. It also contained the verbatim record of all the hearings concerning the applicant’s detention, the applicant’s appeals and evidence submitted by him to the courts, as well as appellate decisions extending his detention.

50. The applicant disagreed.

51. The Court accepts the Government’s submissions and concludes that the applicant has failed to substantiate this complaint. The Court considers that this complaint is therefore manifestly ill-founded and must accordingly be declared inadmissible under Article 35 §§ 3 and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

52. The applicant complained under Article 5 § 4 of the Convention that he and his lawyer had not had access to any of the evidence on which the domestic courts had based their decisions. He also complained under Article 5 §§ 3 and 4 that the courts had not given “relevant and sufficient reasons” for dismissing his habeas corpus requests based in particular on his state of health and that the appellate court had refused to rehear his doctor. In light of the above findings under Article 3 of the Convention (see paragraph 42 above), the Court does not consider it necessary to determine whether the applicant’s arguments about his state of health were pertinent to the lawfulness of his detention under Article 5, or whether the courts gave adequate reasons for the decision. Therefore the Court will only examine the complaint about the applicant’s access to the case file. Article 5 § 4 of the Convention reads as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

A. Admissibility

53. 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

54. The Government submitted that the applicant had in fact sought access to the criminal case file, which was confidential before the case was committed for trial.

55. The applicant disagreed, and argued that contrary to domestic law he and his lawyer had been refused access to the documents regarding the application for an extension of detention and was thus unable to properly challenge the reasons for his detention.

56. The Court reiterates that a court examining an appeal against detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person.

57. In the case of a person whose detention falls within the ambit of Article 5 § 1 (c), a hearing is required. In view of the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned, proceedings conducted under Article 5 § 4 of the Convention should in principle meet, to the largest extent possible under the circumstances of an ongoing investigation, the basic requirements of a fair trial (see Shishkov v. Bulgaria, no. 38822/97, § 77, ECHR 2003‑I (extracts)).

58. Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential for an effective challenge to the lawfulness, in the sense of the Convention, of his client’s detention (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999‑II, and Garcia Alva v. Germany, no. 23541/94, § 39, 13 February 2001). The concept of lawfulness of detention is not limited to compliance with the procedural requirements set out in domestic law, but also concerns the reasonableness of the suspicion on which the arrest is grounded, the legitimacy of the purpose pursued by the arrest, and the justification of the ensuing detention. The Court acknowledges the need for criminal investigations to be conducted efficiently, which may imply that some of the information collected during them is to be kept secret in order to prevent suspects from tampering with evidence and undermining the course of justice. However, this legitimate goal cannot be pursued at the expense of substantial restrictions on the rights of the defence (see Ţurcan and Ţurcan v. Moldova (no. 39835/05, § 60, 23 October 2007, and Musuc v. Moldova, no. 42440/06, § 54, 6 November 2007).

59. In the present case, it is disputed between the parties whether the applicant or his lawyer asked for access to parts of the investigation file or to the entire investigation file, and whether they were refused such access. The Court observes, nevertheless, that according to the verbatim record of the hearing of 30 November 2012 the applicant’s lawyer explicitly asked for access to the part of the investigation file submitted by the prosecutor to the court to decide on the application for detention. The court refused the applicant’s lawyer’s request. According to the verbatim record of the hearing of 26 December 2012, the court did not even rule on the applicant’s lawyer’s request for access after the prosecutor informed the court that he had not submitted any additional material. In his appeals the applicant asked for access to the same part of the case file, but to no avail.

60. The Court notes that no reasons were given by the district court or by the appellate court for withholding this information, and that the applicant was unable to challenge properly the reasons for his detention. In such circumstances, it cannot be said that the principle of “equality of arms”, within the meaning of Article 5 of the Convention, was observed in the present case. There has, accordingly, been a violation of Article 5 § 4 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION

61. The applicant submitted that he had not been entitled to compensation for the alleged violations of his rights under Article 5 of the Convention.

He relied on Article 5 § 5, which provides:

“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A. Admissibility

62. The Court considers that this complaint raises questions of fact and law which are sufficiently serious that its determination should depend on an examination of the merits. No other grounds for declaring it inadmissible have been established. The Court therefore declares this complaint admissible.

B. Merits

63. The Government submitted that the complaint was premature because the criminal investigation in respect of the applicant was pending and the courts had not found the applicant’s detention to be unlawful. The Government referred to Law no. 1545 as a mechanism meant to afford compensation for unlawful detention, which however could have been initiated only if the applicant had been finally acquitted.

64. The applicant disagreed.

65. The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185-A, and Houtman and Meeus v. Belgium, no. 22945/07, § 43, 17 March 2009). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions. In this connection, the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty (see Ciulla v. Italy, 22 February 1989, § 44, Series A no. 148; Sakık and Others v. Turkey, 26 November 1997, § 60, Reports 1997-VII; and N.C. v. Italy [GC], no. 24952/94, § 49, ECHR 2002-X).

66. Turning to the present case, the Court observes that, regard being had to its finding of a violation of paragraph 4 of Article 5, paragraph 5 is applicable. It must therefore ascertain whether the applicant had an enforceable right at the domestic level to compensation for damage.

67. It does not appear from the relevant legislation (see paragraph 28 above), that the applicant would have a remedy available to him to this effect, either before or after the adoption of the present judgment, as long as a domestic court does not finally acquit him of all charges. Moreover, the Government have not submitted any arguments to the contrary.

68. There has therefore been a violation of Article 5 § 5.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

69. 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

70. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.

71. The Government submitted that the claims were excessive in the light of the Court’s case-law in similar cases.

72. The Court considers that the applicant must have been caused a certain amount of suffering in view of the violations found above. It notes that it has found that he was held in conditions of detention contrary to Article 3 of the Convention, without being provided with appropriate medical care. Moreover, the Court also found a violation of Article 5 § 4 and Article 5 § 5 of the Convention. The Court awards the applicant EUR 9,800 in respect of non-pecuniary damage.

B. Costs and expenses

73. The applicant also claimed EUR 4,500 for costs and expenses incurred before the Court. He submitted a contract and a detailed time sheet. He submitted an itemised list of hours his lawyer had worked on the case, amounting to 60 hours at a rate of EUR 75 per hour.

74. The Government disagreed with the claimed sum.

75. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads, less EUR 850 already paid in legal aid by the Council of Europe.

C. Default interest

76. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning Article 3 in respect of material conditions of detention and Article 5 § 1 inadmissible and the remainder of the application admissible;

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

3. Holds that there has been a violation of Article 5 § 4 and of Article 5 § 5 of the Convention;

4. Holds

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

(i) EUR 9,800 (nine thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 650 (six hundred and fifty 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;

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

Done in English, and notified in writing on 7 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsLuis López Guerra
RegistrarPresident

 

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