Communicated on 18 November 2014
THIRD SECTION
Application no. 33446/11
Valeriu MITUL and Iurie COTOFAN
against the Republic of Moldova and Russia
lodged on 19 April 2011
STATEMENT OF FACTS
1. Mr Valeriu Mîțul (the first applicant) and Mr Iurie Coțofan (the second applicant), are Moldovan nationals who were both born in 1961 and live in Dubăsari and Cocieri respectively. They are represented before the Court by Mr A. Postica and Ms N. Hriplivîi, lawyers practising in Chişinău.
A. The applicants’ arrest and detention
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The first applicant was at the relevant time the mayor of Corjova, a village situated on the left bank of the Nistru river. Moldova and the self-proclaimed “Moldovan Republic of Transnistria” (“the MRT”) dispute control over that village. The second applicant was a local councillor in the same village.
4. Each year on 2 March the people of Corjova commemorate the memory of those who died during the 1992 conflict between Moldovan forces and “MRT” separatists. On 2 March 2011 the first applicant opened the ceremony at 10.30 a.m. in the centre of Corjova. Thereafter the villagers marched to the monument for the victims of the conflict erected at the entrance to the village. The march was peaceful and without incident.
5. At some point two cars belonging to the “MRT militia” stopped nearby. Militia personnel requested the first applicant to stop the unauthorised meeting and not to fly the flag of the Republic of Moldova. The participants of the ceremony declared that they would continue and they entered the local church for a commemorative religious service.
6. At around 11.10 a.m. the participants left the church and were surrounded by some thirty members of the MRT militia, who managed to immobilise the applicants and to take them to the “Dubăsari militia” station.
7. According to reports made by the militiamen to their superiors on the same day, they had seen a group of approximately 100 people leaving the church. The applicants were at the head of the group and the second applicant was holding the flag of the Republic of Moldova. They were ordered to take down the flag, since they were on the territory of the “MRT”. The applicants refused to obey, declaring that they were on Moldovan territory. Having been warned against resisting the lawful orders of the “militia”, the applicants did not react at all, following which they were arrested and brought to the “Dubăsari militia” station.
8. During the incident the applicants were allegedly kicked and hit with rubber truncheons. The intervention of six plain-clothed Moldovan police officers, including the superintendent of the Moldovan Dubăsari police station, could not stop the actions of the “MRT militia”. Troops from the peacekeeping mission stationed 500 to 1,000 metres from the incident did not intervene.
9. One hour after the incident the applicants were charged with the administrative offence of resisting the lawful orders of the “MRT militia” during the unauthorised meeting at which they had displayed the flag of Moldova.
10. Also on 2 March 2011 the “Dubasari people’s court” found each applicant guilty as charged and sentenced each of them to seven days’ administrative detention.
11. On appeal the applicants’ lawyer argued that apart from the statements made by the militiamen no evidence had been submitted to the file to substantiate a repeated refusal to abide by militia orders. When ordered to take down the flag, the applicants did not refuse outright to comply, but wanted to find out first the reason for the order, since they were on Moldovan territory and were flying the Moldovan flag. However, they were immediately arrested by the militia without further explanation.
12. On 5 March 2011 the applicants were released on the basis of an order of the “MRT president”. The applicants did not submit a copy of that order to the Court.
13. On 15 March 2011 the “MRT supreme court” upheld the decisions of 2 March 2011, finding that there was sufficient evidence that they had disobeyed lawful orders of the militiamen to take down the Moldovan flag and to follow them to their headquarters.
14. On 18 March 2011 the applicants’ lawyer asked the Moldovan Prosecutor General’s Office to initiate criminal proceedings against the persons who had unlawfully detained the applicants. On 24 March 2011 the Prosecutor General’s Office informed the applicants’ lawyer that on 2 March 2011 the Dubăsari prosecutor’s office had initiated such a criminal investigation.
B. The applicants’ conditions of detention
15. During their detention the applicants refused to eat, in order to avoid being drugged and in that way being made to “confess” to crimes. After their release they underwent medical testing, which revealed that each of them had chronic diseases (the first applicant had chronic pancreatitis, diabetes, hepatic steostatis and chronic colicistitis, while the second applicant had chronic pancreatitis, chronic colicistitis, chronic hepatitis HBV and gastritis).
The applicants were detained in a cell in the militia headquarters in Dubasari which was situated in the basement, without any access to natural light or ventilation, sleeping on a concrete block, with a heavy smell of excrements mixed with a smell of chlorine.
COMPLAINTS
16. The applicants complain under Article 3 about their inhuman conditions of detention, as well as under Article 13 of the Convention taken in conjunction with Article 3 because of the lack of effective remedies in respect of their complaint under Article 3.
17. The applicants complain under Article 5 § 1 of the Convention that they were subjected to unfounded arrest by unlawfully created authorities and courts which lacked independence and impartiality.
18. They also complain under Article 11 of the Convention of unlawful interference with their freedom of assembly.
QUESTIONS TO THE PARTIES
1. Do the applicants come within the jurisdiction of Moldova and/or Russia within the meaning of Article 1 of the Convention as interpreted by the Court, inter alia, in the cases of Ilaşcu and Others v. Moldova and Russia [GC], (no. 48787/99, ECHR 2004-VII; Ivanţoc and Others v. Moldova and Russia, no. 23687/05, 15 November 2011; and Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04, 8252/05 and 18454/06, ECHR 2012 (extracts)) on account of the circumstances of the present case?
In particular, in the light of the above-mentioned cases, could the responsibility of the respondent Governments under the Convention be engaged on account of their positive obligations to secure the applicants’ rights under the Convention?
Have there been any developments following the above-mentioned cases which might affect the responsibility of either Contracting Party?
2. Has there been a violation of Article 3 of the Convention? In particular, have the applicants been held in inhuman or degrading conditions of detention?
3. Has there been a violation of Article 5 § 1 of the Convention? In particular, was the applicants’ detention “lawful” within the meaning of that provision?
4. Do the facts of the case reveal a violation of Article 11 of the Convention?
5. Did the applicants have an effective remedy, within the meaning of Article 13 of the Convention for their complaint under Article 3?
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