MIRCA v. THE REPUBLIC OF MOLDOVA AND RUSSIA and 2 other applications

Communicated on 2 November 2017

SECOND SECTION

Application no 7845/06
Alexei MÎRCA and Dumitru MIRCA against the Republic of Moldova
and Russia
and 2 other applications
(see list appended)

STATEMENT OF FACTS

The facts of the cases, as submitted by the respective applicants, are summarised in column II of the Appendix.

The background to the cases, including the Transdniestrian armed conflict of 1991-1992 and the subsequent events, is set out in Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 28-185, ECHR 2004‑VII) and Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 8-42, ECHR 2012).

Below is the list of applicants and the basic information concerning each one.

The applicants complain of inadequate conditions of detention, lack of qualified medical assistance, unlawful detention, and the lack of effective remedies against these infringements. In some of the applications, they also raise complaints under other provisions of the Convention (for further details see column III of the appended table).

1. Application no. 7845/06 was lodged on 8 February 2006 by two Moldovan nationals, Mr Alexei Mîrca, who was born in 1949 and lives in Căușeni, and Mr Dumitru Mîrca, who was born in 1953 and lives in Bender. They are represented by N. Urîtu from the Helsinki Committee for Human Rights in the Republic of Moldova.

2. Application no. 48802/08 was lodged on 27 September 2008 by a Russian national, Mr Alexandru Alimpiev, who was born in 1950 and lives in Tiraspol. He is represented by V. Țurcan, a lawyer practising in Chișinău.

3. Application no. 22365/10 was lodged on 22 April 2010 by two Moldovan nationals, Mr Ilie Cazac and Mrs Stelea Surchician, who were born in 1985 and 1966 respectively and live in Bender. They are represented by A. Postica, V. Postica, N. Hriplivîi and A. Zubco, lawyers practising in Chișinău.

COMPLAINTS

The list and details of the complaints raised by each applicant have been set out and summarised in the appended table.

APPENDIX

I

Application

no.

II

Summary of Facts

III

Complaints

7845/06

Mirca

A. The applicants’ arrest following the arrest of their father

The applicants’ father, C.M., participated in the 1992 military conflict on the banks of the Nistru river on the side of the Moldovan authorities and against the forces of the self-proclaimed “Moldovan Republic of Transnistria” (the “MRT”). In 1993 he was charged by the “MRT” authorities with murder, following which he left the “MRT” region and settled in a village under Moldovan control near Bender/Tighina, a town which is controlled by the “MRT”. On 27 June 2004 C.M. was involved in a car accident, following which he was brought unconscious to a hospital in Bender/Tighina. In that hospital he was identified by the “MRT” militia as a fugitive and was later moved to a hospital in Tiraspol. He was handcuffed to the bed and guarded all the time by the “MRT” militia.

On 18 July 2004 the applicants visited C.M. in hospital. They stayed overnight at a friend’s house. During the same night C.M. escaped from hospital. At 3 a.m. on 19 July 2004 the “MRT” militia burst into the house where the applicants were sleeping and arrested them.

On 26 July 2004 the applicants were charged with having committed the criminal offence of assisting in the escape of a detained person. On the same day the Bender City Court released the second applicant (Dumitru Mirca), who undertook not to leave the town (Bender/Tighina). The first applicant was placed in detention pending trial for an undetermined period. On 19 August 2004 the second applicant was rearrested.

On 26 November 2004 an “MRT” prosecutor started a criminal investigation into the applicants’ assistance in the escape of a detained person. On the same date they were indicted for that offence. The prosecutor mentioned, inter alia, that during the investigation the applicants had alleged having been ill-treated by the “MRT” militia, but that in the absence of any evidence of such ill-treatment the complaint was rejected by a prosecutor’s decision of 26 November 2004.

On 20 May 2005 the Bender City Court extended the applicants’ detention pending trial until 9 September 2005. The prosecutor in charge of the case attended that hearing; there was no reference to the applicants’ lawyer’s participation.

On 16 June 2005 the Bender City Court convicted the applicants of assisting C.M. to escape and sentenced them to three years imprisonment. The applicants did not inform the Court of the further course of those proceedings. On 25 July 2006 the first applicant was released from prison on the basis of an amnesty act.

B. Alleged ill-treatment, inhuman conditions of detention and lack of medical assistance

According to the first applicant (Alexei Mirca), he was ill-treated almost daily while in pre-trial detention in order to extract confessions from him. He was denied access to a doctor or to a lawyer during the first eight days of detention. According to both applicants, no relatives were allowed to see them. Only once was the first applicant allowed to see his son, who observed that his father was in very bad shape.

Initially the applicants were not allowed pens and paper and so they could not complain of their ill-treatment. Their oral complaints to prosecutors went unanswered, allegedly because their case was a political one. Eventually they managed to lodge written complaints, which were annexed to the criminal file against them and dismissed at a later stage for lack of evidence. According to the applicants, who have not submitted any documents in this respect, the investigators dismissed their complaints about ill-treatment by finding that the injuries had been caused when the applicants had disobeyed instructions while in detention.

The applicants were able to communicate with their families only after their conviction on 16 June 2005.

The first applicant submitted a copy of a medical certificate dated 16 July 2004, according to which he had been declared healthy and fit for work three days prior to his arrest. After his release from prison on 25 July 2006, on 22 August 2006 he was examined by the Memoria Rehabilitation Centre for Torture Victims, which established that the first applicant had been suffering, inter alia, the consequences of a cerebral trauma with organic post-traumatic cerebral syndrome, traumatic neurosis and anxiety-depressive disorder. The document concluded that most of the medical findings were in accordance with his claim that he had been tortured.

The applicants describe the conditions of their detention, first in the prison in Tiraspol, then in the prison in Hlinaia, as follows. They were held in cells with up to twenty other detainees. They slept on bunk-beds. It was very hot in summer. Sanitary conditions were very poor. The cells lacked access to daylight and had a strong smell. There were no toilets in the cells. The second applicant is still in prison. His state of health has worsened (partial loss of sight, kidney problems) and the prison administration asked his relatives to bring medicines needed for treating him.

The first applicant complains under Article 3 of the Convention that he was ill-treated by the “MRT” militia and that no effective investigation of his complaints in that respect was carried out.

The applicants complain, under the same provision, that they were detained in inhuman conditions of detention and were not given the medical assistance required for their state of health.

They further complain, under Article 5 § 1 of the Convention, that their detention was not ordered by a lawfully constituted court and was not based on Moldovan law.

The applicants complain that they were denied meetings with their families and that their correspondence was censored.

They lastly complain, under Article 13 of the Convention, that they did not have effective remedies in respect of their complaints under Articles 3 and 5 of the Convention.

48802/08

Alimpiev

1. The applicant’s arrest and conviction

The applicant was the president of the Tiraspol People’s Court in the self-proclaimed “Moldovan Republic of Transdniestria” (the “MRT”). On 31 August 2006 the “MRT” prosecutor’s office initiated a criminal investigation into alleged bribe taking by the applicant.

On 17 May 2007 the applicant was arrested and officially accused of bribe taking.

On 25 December 2008 the “MRT” Supreme Court convicted the applicant of bribe taking and sentenced him to seven years’ imprisonment. That judgment was upheld by the Appellate Chamber of the “MRT” Supreme Court on 18 March 2009.

On 24 July 2009 the plenary “MRT” Supreme Court examined the applicant’s criminal case in extraordinary proceedings and reduced his sentence to five years’ imprisonment. The “MRT” court ordered his release on the basis of an amnesty act.

2. The applicant’s detention pending trial

From the date of his arrest until his conviction on 25 December 2008 the applicant was detained pending trial. The prosecutor periodically sought the extension of the applicant’s detention and this was granted each time by the judge.

The applicant was unable to submit copies of any decisions extending his detention pending trial, as his lawyer’s requests to be given copies of those decisions had been rejected. For instance, on 21 July 2008 the applicant’s lawyer wrote a telegram to the president of the “MRT” Supreme Court, asking to be provided with a copy of a decision of 18 July 2008 ordering the extension of the applicant’s detention. He also asked that the applicant’s rights under Article 34 of the Convention not be hindered by a refusal to provide a copy. In a reply dated 23 July 2008 the president of the “MRT” Supreme Court informed the applicant’s lawyer that “MRT” law did not provide for the right of defence representatives to obtain copies of decisions issued in response to applications before the courts.

On 15 August 2008 the applicant’s lawyer asked the president of the “MRT” Supreme Court to be allowed to make copies of selected parts of his client’s criminal file. On the same date the president of the “MRT” Supreme Court added a handwritten note on the request, refusing it and explaining that “MRT” law did not provide for the right to make copies of documents in criminal files.

On 18 August 2008 the applicant’s lawyer asked to be given copies of all the decisions extending his client’s detention pending trial. He underlined that he had not been involved in the case at the pre-trial stage of the proceedings and thus needed to have copies of the decisions previously issued in order to organise an effective defence. He also relied on Article 34 of the Convention and stated that there were no legal grounds for the refusal to issue him with copies of the decisions concerning his client.

The applicant submitted copies of his lawyer’s applications made to the “MRT” courts to replace the applicant’s detention with an alternative preventive measure. In those applications the lawyer relied on Articles 3, 5, 6, 8 and 13 of the Convention and noted that in extending his client’s detention the “MRT” court had simply cited the applicable legal provisions (concerning the risk of absconding, reoffending or interfering with the investigation), without referring to any evidence confirming that the relevant risks were present in his client’s specific case. The lawyer also described the applicant’s conditions of detention and his state of health, which he submitted had worsened as a result of those conditions.

3. The applicant’s conditions of detention and medical assistance

The applicant described the conditions of his detention in a temporary holding facility (IVS) in Tiraspol and a sentence execution facility in Tiraspol (UIN-3) as follows. The cell had no separate toilet or shower; he was not provided with any hygiene products or bed linen; the cell was infested with parasites; the quality of the tap water was bad; the cell window was very small and allowed damp and cold air into the cell; and daily walks were only allowed for a very short time each day. There was a weight limit on the items that could be sent to a detainee by his relatives (30 kg a month, including bottled water), which combined with the inedible food provided by the detention facility meant that he was often subjected to torture through hunger.

During the trial the applicant was held in a metal cage. On 6 August 2008 the applicant’s lawyer asked the president of the “MRT” Supreme Court to allow his client to sit next to him and not in a cage, as that was the only way that he could defend his client’s rights properly. He also asked for a finding that cages in courtrooms were unlawful. It is unclear whether the lawyer received a reply.

The applicant submitted a medical certificate confirming that on 23 June 2008 he had been attended to by an emergency medical team. The doctors had diagnosed respiratory problems and had noted that he had been suffering from moderate persistent asthma. He had been prescribed medication. According to the applicant, his cellmates had smoked heavily, subjecting him to passive smoking (he is not a smoker himself).

4. Alleged censorship of correspondence

According to the applicant, all his correspondence was censored during his detention. He submitted the copy of a letter sent to him personally by his lawyer. On the envelope there is a stamp with the inscription: “Verified. Censor (signature), 8/09/2008”.

The applicant complains under Article 3 of the Convention that he was detained in inhuman conditions, that he was not provided with medical assistance appropriate to his state of health and that he was held in a metal cage during the court hearings.

He also complains, under Article 5 § 3 of the Convention, that the “MRT” courts gave insufficient reasons for their decisions extending his detention pending trial.

He further complains, under Article 5 § 4 of the Convention, that his lawyer was not allowed to make copies of the decisions extending his detention pending trial and that he was not given access to any case-file material in support of the prosecutor’s applications to extend his detention.

He also complains of a breach of Article 8 of the Convention as a result of the censorship of his correspondence.

He lastly complains, under Article 13 of the Convention, that he did not have effective remedies at his disposal in respect of his complaints under Articles 3 and 8 of the Convention.

22365/10

Cazac and Surchicean

A. The first applicant’s arrest and detention and related events

The first applicant is the second applicant’s son. He worked as a tax inspector in the self-proclaimed “Moldovan Republic of Transdniestria” (the “MRT”). On 19 March 2010 he was arrested by officers from the “MRT” Ministry of State Security (the “MSS”). He was not allowed to inform anyone of his arrest.

The second applicant found out about the arrest on 21 March 2010 from her other son and from a pro bono lawyer who had called her and told her that she was representing her son. She also told her that her son was accused of treason in the form of espionage against the “MRT” and in favour of Moldova. No documents concerning the first applicant’s arrest were issued to the applicants by the date of lodging this application. According to the first applicant, another lawyer, K., was subsequently appointed to represent him. He was threatened with ill-treatment, with being infected with HIV by fellow detainees, and with placement in a cell for detainees with active forms of tuberculosis if he did not agree to be represented by K.

During the night of 21 March 2010 searches were carried out at two apartments belonging to the second applicant in her absence and without showing her other son, who was present, any order confirming the lawfulness of the searches. During the searches furniture was allegedly destroyed. A list of items taken from the apartments was never drawn up.

On 25 March 2010 the second applicant complained to the Bender police station (Moldovan police) and the Moldovan Prosecutor General’s Office of the first applicant’s illegal arrest and the unlawful searches. On 26 March 2010 she asked the “MRT” prosecutor’s office to inform her of her son’s whereabouts and to be issued with copies of procedural documents concerning him.

On 1 April 2010 the first applicant’s pro bono lawyer asked a Moldovan prosecutor’s office to initiate criminal proceedings into his client’s abduction and the unlawful searches. On 17 April 2010 he was informed that such a criminal investigation had been initiated on 31 March 2010.

On 2 April 2010 the second applicant was summoned to the premises of the MSS. She had to participate in the making of a list of items from her apartment which were to be expropriated.

On 4 April 2010 the second applicant was informed by the “MRT” military prosecutor that the MSS officers had not committed any crime and that the MSS investigator was responsible for deciding whether to allow her to meet with her son. According to the applicant, she had previously asked the MSS investigator to be allowed to see her son, but had received no reply.

On 6 April 2010 the Moldovan Ministry of Foreign Affairs informed the second applicant that efforts were being made to ensure access to the first applicant by his relatives.

  On 19 April 2010 the lawyer hired by the second applicant to represent her son asked the “MRT” authorities for permission to see her client, but received no reply. Thereafter the first applicant appointed K., the lawyer mentioned above who worked in the “MRT”, under threats of ill-treatment. K. was present during all his meetings with representatives of the Organization for Security and Co-operation in Europe (“the OSCE”) that took place thereafter and the applicant was warned not to complain about anything, under threat of ill-treatment.

On 18 June 2010 the first applicant was seen by OSCE representatives. It was the first time he had had contact with anyone other than individuals representing the “MRT” authorities. K. was present at the meeting, although the first applicant had asked for a private meeting.

  On 21 June 2010 the “MRT” prosecutor’s office informed the second applicant that while “MRT” law allowed the investigator to authorise meetings with a detainee’s relatives, this was not an obligation.

On 9 August 2010 the applicants saw each other for the first time since their arrest over four months earlier, in the presence of OSCE representatives.

  The first applicant’s detention pending trial was extended on an unknown date in mid-August and again on 17 September 2010. Each time the applicant was not given an opportunity to address the “MRT” court.

  On 18 October 2010 the applicants were again allowed to see each other. During this meeting the first applicant told his mother that he was ill and was not receiving medical assistance. He had been questioned by multiple investigators for ten to fifteen hours in a row with few breaks and without being given food and water or being allowed to go to the toilet.

  On 10 December 2010 the second applicant found out that her son’s case had been submitted to the “MRT” Supreme Court for trial. She asked the judge in charge of the case to allow her to meet with the first applicant, but she received no reply.

  The lawyer hired by the second applicant to represent her son was never given copies of any documents concerning his detention, including court decisions ordering the extension of such detention. On 18 July 2011 the second applicant again requested copies of court decisions concerning her son’s detention, as well as those concerning the searches of the two apartments. In reply she was told that “MRT” law did not give her such a right, since she was not a party to the proceedings.

B. The first applicant’s trial, conviction and release

  On 5 November 2010 the first applicant declared that he no longer wished to be represented by K. He was then severely ill-treated by other detainees. When he subsequently asked the “MRT” court to replace K. with his chosen lawyer, this was refused.

  On 19 November 2010 he was shown the final charges submitted to the trial court by the prosecution. However, he was not allowed to read them, because they contained classified evidence.

  During the trial hearings the first applicant asked for a translator in order to translate documents confirming his innocence (corresponding in Romanian with his cousin in Chișinău). This was refused. The only people present at the in camera hearings were the judge and her assistant, the prosecutor, K. and the first applicant.

  On 9 February 2011 the first applicant was convicted by the “MRT” Supreme Court of treason and sentenced to fourteen years’ imprisonment. He did not submit a copy of the “court’s” decision to the Court. On the same date the Moldovan Government made a statement, declaring the first applicant’s conviction to be an unlawful act and a human rights violation. Similar reactions came from international organisations such as the Council of Europe, the European Union, the OSCE, and the embassy of the United States of America in Moldova. The embassies of the Russian Federation and Ukraine did not comment.

  The first applicant appealed against his conviction. On 21 March 2011 his appeal was rejected and his conviction was upheld by the appellate chamber of the “MRT” Supreme Court.

  On 1 August 2011 the first applicant asked the president of the “MRT” for a pardon. He asked again for a pardon on 19 September 2011.

  On 31 October 2011 the first applicant was pardoned by the president of the “MRT” and was released from prison.

C. The conditions of the applicant’s detention, alleged lack of medical assistance and ill-treatment

  Upon his release the first applicant gave a detailed description of the conditions of his detention. Initially he was detained in a cell without any furniture except for a table and a chair. He slept on the table with no bed linen and in a very uncomfortable position. It was a windowless cell and it was very cold.

  He was then moved to a cell designed for three people, in which he was detained together with seven other people. There were not enough beds and the detainees had to take turns to sleep. Everyone else in the cell smoked, which subjected the first applicant to passive smoking. The ventilation system did not work. There was constant noise from water dripping in the broken lavatory; the tap water was so rusty he could not drink it. When he started receiving parcels from relatives, he asked them to send him cigarettes, which he then exchanged with the guards for clean drinking water.

  On 7 April 2010 the first applicant was moved to another cell with three other detainees, two of whom were convicted persons.

  On 15 April 2010 he was moved to prison no. 1 in Hlinaia, where he was detained until 29 November 2010. He was placed in a cell with a person sentenced to life imprisonment for multiple murders. That detainee cooperated with the “MRT” authorities and was used to physically and psychologically coerce the first applicant. The detainee “persuaded” him to give up the services of the pro bono lawyer representing him and to hire K., a lawyer he did not trust. He also threatened the first applicant with violence and to infect him with HIV. As there was no toilet in the cell, the first applicant had to use plastic bags instead. He was often ill, but received no medical assistance.

  During his detention the first applicant initially refused to confess and to talk to the media, until he was coerced to do so. He was then moved for twenty days to a cell for detainees with tuberculosis. He often asked for permission to see his relatives, but the investigator told him that this would only be possible after he made a self-incriminating statement.

  Several times during questioning sessions the first applicant was sedated with an unknown substance. On one of these occasions he was forced to sign letters to the Moldovan Security Agency (Serviciul de Informaţii şi Securitate) and to the head of the OSCE mission in Moldova acknowledging that he had been recruited as a spy for that State. He signed those letters after being told that if he refused to sign, he would be returned to the cell for detainees with tuberculosis on a permanent basis.

  Before the visit by OSCE officials on 18 June 2010, the first applicant was “instructed” for thirteen hours on what to say and what not to say, under threat of severe ill-treatment.

  On 5 July 2010 the first applicant went on hunger strike in protest against the unfair proceedings and the inhuman conditions of his detention. He was then ill-treated. On an unknown date he discontinued his hunger strike. However, on 30 July 2010 he restarted it because of the absence of medical assistance and the constant psychological and physical ill-treatment inflicted on him by his convicted cellmate. After his transfer to another cell, he stopped his hunger strike. On 11 August 2010 he again started a hunger strike, asking to have an expert report commissioned and to be informed of the exact charges against him. This was refused, and he was then ill-treated by his cellmates, who eventually forced him to start eating.

  During his detention the first applicant started having dental problems. As there was no dentist in the prison, he kept taking pills sent by his mother in order to ease the pain. However, from February 2011 onwards the pain was too strong for the pills to have an effect. On 26 April 2011 he was finally taken to a dentist in prison no. 3. The dentist allegedly told him that he could not treat him due to the absence of specialised equipment, save for extracting all the teeth on one side of his jaw. He refused to undergo this treatment.

  On 21 April 2011 the World Organisation Against Torture (Organisation Mondiale contre la Torture) called for specialised medical treatment to be given to the first applicant. It repeated its call on 17 and 23 May 2011.

  On 30 September 2011 the Moldovan prosecutor’s office opened a criminal investigation into the first applicant’s alleged ill-treatment by “MRT” agents while in detention.

The first applicant complains under Article 3 of the Convention that he was ill-treated while in detention, detained in inhuman conditions and not given the medical assistance required by his condition.

He also complains of a breach of Article 5 because of his illegal detention by unlawfully created “MRT” authorities; because neither he nor the lawyer hired by his mother were given access to the material concerning his detention pending trial; and because he was not informed of the reasons for his arrest.

He further complains of a violation of Article 6 of the Convention because his case was politically motivated and the guarantees of a fair trial, such as access to the prosecution file in order to prepare his defence, were not observed.

Both applicants complain, under Article 8, of their inability to see each other for prolonged periods of time, and of unlawful searches resulting in the seizure of various items from the second applicant’s apartments.

The first applicant also complains that he did not have effective remedies, as required under Article 13 of the Convention, for his complaint under Article 3.

Both applicants complain, under Article 13, that they did not have effective remedies for their complaint under Article 8 of the Convention.

QUESTIONS

1. Has there been a violation of Article 3 of the Convention in the present cases? In particular:

(a) were the relevant applicants in applications nos. 7845/06 (only the first applicant) and 22365/10 subjected to ill-treatment while in detention?

(b) has there been an effective investigation into the allegations of ill-treatment of the applicants in applications nos. 7845/06 and 22365/10?

(c) were the applicants provided with an appropriate level of medical assistance?

(d) were they held in inhuman and/or degrading conditions of detention (including being placed in a metal cage during court hearings in respect of application no. 48802/08)?

2. Do the facts of the case attest a breach of Article 5 § 1 of the Convention in respect of all applicants, except for Mr Alimpiev (application no. 48802/08) and the second applicant in application no. 22365/10? In particular, were the applicants lawfully arrested?

3. Has there been a violation of Article 5 § 3 of the Convention in respect of application no. 48802/08 and in respect of the first applicant in application no. 22365/10? In particular, did the “MRT” courts give “relevant and sufficient reasons”, within the meaning of that provision, for their decisions extending the relevant applicants’ detention pending trial?

4. Has there been a violation of Article 5 § 4 of the Convention in respect of applications nos. 48802/08 and 22365/10? In particular, was each of the applicants’ lawyers allowed proper access to the decisions of the “MRT” courts extending the detention pending trial and to any material submitted to those courts by the “MRT” prosecutors when the latter sought such extensions in respect of each applicant? Was each applicant represented by a lawyer of his own choice in such proceedings and was each of them promptly informed of the reasons for his arrest?

5. Has there been a violation of Article 6 § 1 of the Convention in application no. 22365/10? In particular, was the first applicant in that case lawfully convicted by a “tribunal established by law” within the meaning of that provision?

6. Do the facts of the case attest to a breach of Article 8 of the Convention, notably on account of the refusal to allow family visits in prison (applications nos. 7845/06 and 422365/10), the censorship of correspondence (applications nos. 7845/06 and 48802/08) and the allegedly unlawful searches (application no. 22365/10)?

7. Has there been a violation of Article 13 of the Convention taken in conjunction with Articles 3 and 8 of the Convention?

Full & Egal Universal Law Academy