THIRD SECTION
DECISION
Application no. 32530/07
Malhaz DJAPARIDZE
against Moldova
The European Court of Human Rights (Third Section), sitting on 31 January 2012 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Mihai Poalelungi,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 1 August 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Malhaz Djaparidze, was a stateless person who had been born in 1964 and until his death on 26 April 2008 lived in Chişinău. The applicant is represented before the Court by Mr V. Ţurcan and Mr A. Beruciaşvili, lawyers practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
2. On 30 April 2008 the Registrar was informed of the applicant’s death. On 23 November 2009 the applicant’s son, Mr Gheorghii Djaparidze, informed the Registrar that he wanted the proceedings to continue and wished to participate in them, retaining the applicant’s lawyers as his representatives. For practical reasons, Mr Malhaz Djaparidze will continue to be referred to in this decision as “the applicant”, although Mr Gheorghii Djaparidze is now to be regarded as having this status (see the Vocaturo v. Italy 24 May 1991, § 2, Series A no. 206-C).
1. The applicant’s detention in 2007 and his subsequent disappearance
3. The applicant was accused of consuming narcotic drugs while serving a sentence. On 12 July 2007 the Buiucani District Court discontinued the criminal proceedings against him and ordered his immediate release.
4. After leaving the court building the applicant was arrested again by the police. The reason was that he had been found walking in the street without documents and had no permanent abode or means of support. The applicant then gave personal details, including his permanent address in Chişinău, to a police officer. He indicated that he did not have any identity documents, which were all still with the prison administration.
5. The applicant was placed in a centre for homeless people (“the Centre”). His lawyers complained that he had been detained unlawfully.
6. On 17 July 2007 the applicant’s lawyers made a complaint of unlawful detention to the Rîşcani District Court. The court postponed two hearings (on 19 and 24 July 2007) at the request of the applicant’s lawyers, who had asked for documents concerning the reasons for the applicant’s arrest from the prosecution.
7. On 17 July 2007 the applicant signed an authority form for his lawyers to represent him before the Court.
8. On 18 July 2007 it became clear that he was no longer at the Centre. A criminal investigation was opened against two officers, who were accused of taking the applicant out of the Centre during the night of 17-18 July 2007 to a place on the outskirts of Chişinău, from where he had fled. At the same time, the applicant was declared a wanted person.
9. On 1 August 2007, the Rîşcani District Court found that the applicant’s arrest and detention had been unlawful since none of the legal grounds cited by the prosecution applied. The court relied expressly on Articles 5 and 13 of the Convention. That decision was final.
2. Events after the applicant’s re-arrest in 2008
10. On 13 February 2008 the applicant was expelled from Ukraine at the border with Moldova, even though his extradition to Moldova had been refused by the Odessa County Appeal Court on 24 March 2008. On 25 March 2008 he was arrested when crossing the border with Moldova.
11. Following his arrest the applicant was placed in the detention facility of the Operational Services Department of the Ministry of Interior (“the DSO”). On 31 March 2008 his lawyers complained to the Prosecutor General’s Office that the DSO administration had refused to allow him to receive any food or clothes. They noted that he was suffering from hepatitis and required a special diet and that there was a risk of deterioration of his state of health. They asked for their client to be transferred to prison no. 13 so that he could obtain appropriate medical treatment.
12. On 4 April 2008 the applicant’s lawyers complained to the Prosecutor General’s Office, noting the risk to his state of health in the inhuman conditions of detention of the DSO detention facility. On 10 April 2008 the applicant was transferred to prison no. 13 in Chişinău.
13. On 18 April 2008 the applicant’s lawyers asked the authorities at prison no. 13 to inform them of the reasons for placing their client in a solitary cell. On 12 May 2008 they were informed that upon his arrival the applicant had been placed in solitary confinement for fifteen days, in order for him to undergo examinations aimed at establishing the state of his health and for medical treatment to be prescribed if found to be necessary. On 25 April 2008 the applicant was transferred to an ordinary cell.
14. In the morning of 26 April 2008 two detainees who shared the cell with the applicant alerted the prison guards that he was not showing any signs of life. Thereafter the prison doctor pronounced the applicant dead.
15. Between 29 April and 15 July 2008 a medical expert examined the applicant’s body. He found that the cause of death had been cardiac-pulmonary deficiency which had been caused by ischemic cardiopathy and pulmonary fibrocavital tuberculosis. The medical expert also found marks on the cadaver’s back which were interpreted as light injuries caused while the applicant was alive. He was also found to have been under the influence of a minor degree of alcohol intoxication at the time of his death.
16. On 30 April 2008 the applicant’s lawyers informed the Court of their client’s death.
17. On 25 July 2008 a Chişinău Prosecutor’s Office prosecutor decided not to initiate a criminal investigation in the absence of any evidence that a crime had been committed. The prosecutor referred to the statements made by the applicant’s cellmates and the head of the detention block in which he had died. He also cited the findings of the medical and toxicology experts and relied on video recordings, which showed that nobody had entered or left the cell during the night. He noted the presence of marks on the cadaver’s back, without making any comment in that respect.
18. On 11 August 2008 the applicant’s lawyers asked the Prosecutor General’s Office to revoke the decision of 25 July 2008. They mentioned, inter alia, that important questions had not been answered during the preliminary investigation, such as whether their client’s life could have been saved had he been correctly diagnosed and treated in prison no. 13.
19. On 15 September 2008 the Chişinău Prosecutor’s Office replied that the decision of 25 July 2008 had been taken correctly.
20. The applicant’s lawyers challenged the decisions of 25 July and 15 September 2008 before the Centru District Court.
21. On 7 November 2008 the Centru District Court rejected the complaint, on the ground that it had not established that any breaches of fundamental rights had occurred. One of the applicant’s lawyers was present at the hearing. That decision was final.
22. On 23 November 2009 the applicant’s son expressed his wish to continue with the case lodged by his father and raised in essence a complaint under Article 2 concerning the incompletely established circumstances of his father’s death.
COMPLAINTS
23. The applicant complained under Article 5 of the Convention that he had been detained illegally after a court order for his release had been issued on 12 July 2007.
24. He also complained under Article 6 of the Convention that his complaint lodged with the court on 17 July 2007 had never been examined and about the lengthy period of examining the same complaint.
25. He finally complained under Article 13 of the Convention that he had not had an effective remedy in respect of his complaints under Articles 5 and 6 of the Convention.
26. The applicant’s son in essence complained under Article 2 of the Convention that the investigation into his father’s death had not been thorough.
THE LAW
A. Complaint under Article 2 of the Convention
27. The Court notes that the applicant died on 26 April 2008. On 23 November 2009 his son lodged a new complaint under Article 2 of the Convention which for obvious reasons had not been part of the original complaints lodged by the applicant.
28. The Court observes that the applicant’s son made a complaint under Article 2 of the Convention on 23 November 2009, one year after the Centru District Court rejected, in a final decision of 7 November 2008, the applicant’s lawyers’ challenge to the prosecutor’s refusal to launch a criminal investigation (see paragraphs 21 and 22 above).
29. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
B. The complaint under article 5 § 1 of the convention
30. The applicant complained under Article 5 of the Convention that he had been detained illegally after a court order for his release had been issued on 12 July 2007 and that his complaint in that regard, lodged on 17 July 2007, had never been examined by a court. He also argued that his complaint of 17 July 2007 had no basis in law and was aimed solely at obtaining access to materials against him, which had not been disclosed to the defence. The court had exceeded its powers in adopting its decision of 1 August 2007. He considered that that decision had been taken to prevent any complaint to the Court under Article 5.
31. The Government submitted that the unlawfulness of the first applicant’s detention had been fully and expressly confirmed by the final decision of the Rîşcani District Court of 1 August 2007. Given such an express recognition of a violation of his Article 5 rights, the first applicant could have initiated civil court proceedings seeking compensation.
32. The Court reiterates that it has already found that the domestic law and practice in Moldova allow for compensation to be paid to a person whose detention has been declared unlawful by a final court decision (see Mătăsaru and Saviţchi v. Moldova, no. 38281/08, §§ 69-75, 2 November 2010).
33. The Court is unconvinced by the applicant’s argument that the Rîşcani District Court exceeded its powers in adopting its decision of 1 August 2007 (see paragraph 30 above). Even assuming that the applicant’s request lacked a proper basis in domestic law, it is to be noted that the court relied expressly on Article 5 of the Convention. Under Article 4 of the Moldovan Constitution, international human rights treaties take precedence over domestic law when in contradiction with the latter. It follows that the court had the power to declare his detention unlawful, regardless of what the domestic law provided in that respect. Accordingly, the applicant could claim compensation at the domestic level, which he did not do.
34. In view of the findings above, the Court considers that the applicant did not exhaust available domestic remedies, because he had failed to initiate a civil court action claiming compensation.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
C. The complaints under Article 6 of the convention
35. The applicant complained under Article 6 of the Convention that his complaint lodged with the court on 17 July 2007 had never been examined. He also complained, under the same Article, that the court had taken an excessive length of time to examine his complaint of 17 July 2007. His lawyers’ requests to postpone the hearings had been caused by the prosecutor’s failure to disclose information concerning the reasons for their client’s detention.
The Court considers that these complaints should be examined under Article 5 § 4 of the Convention, as they relate to detention pending trial rather than to the main criminal proceedings.
36. Having regard to the domestic courts’ findings that the applicant’s detention had been unlawful, the Court considers that the other complaints, essentially made under Article 5 § 4 of the Convention, do not raise issues separate from those already examined under Article 5 § 1 above.
It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
D. The complaint under Article 13 of the Convention taken in conjunction with Articles 5 of the Convention
37. The Court notes that the complaints under various aspects of Article 5 of the Convention have been declared inadmissible. In view of this finding, the Court considers that the applicant had no arguable claim under Article 13 of the Convention taken together with Article 5.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall Registrar President
Full & Egal Universal Law Academy