Communicated on 11 October 2018
SECOND SECTION
Application no. 83954/17
Petru MUSTEA
against the Republic of Moldova and Russia
lodged on 1 December 2017
STATEMENT OF FACTS
The applicant, Mr Petru Mustea, is a Moldovan national, who was born in 1971 and lives in Ofatinti. He is represented before the Court by Mr A. Postică, a lawyer practising in Chișinău.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant worked as the head of the local administration in Camenca, a town under the control of the self-proclaimed “Moldavian Republic of Transdniestria” (the “MRT”).
1. The applicant’s arrest and detention pending trial
In 2015 the head of a private company accused him of having accepted a laptop for use by the local administration, and then unlawfully appropriating it. Initially the “MRT” militia refused to open an investigation, but on 20 February 2017 a criminal investigation was initiated.
On 21 February 2017 the applicant was subjected to the preventive measure of an undertaking not to leave the “MRT” region.
On 23 March 2017 that measure was replaced with detention pending trial. The Tiraspol city court ordered his detention because he was accused of a serious offence creating a certain social danger; the law allowed for applying such a measure on the ground of the seriousness of the offence alone; the circumstances and character of the offence led the court to conclude that the applicant could interfere with the investigation or abscond and there were no medical or other reasons preventing him from being detained, despite his residence in the “MRT” and his good reputation. The court did not specify for how long the applicant would be detained pending trial.
The applicant lodged an appeal in which he noted that he had not interfered with the investigation in any manner during the time when he had undertaken not to leave the “MRT”; that he could not influence any witness since he was no longer working in the local administration; that he had been summoned to the prosecutor for an alleged verification of some formalities, following which he had been informed that ten minutes later a hearing would take place concerning the request to remand him, leaving him no possibility to prepare or submit documents to the court; that the prosecution had not submitted any evidence in support of the assertion that there was a risk of absconding or interfering with the investigation;
On 7 April 2017 the “MRT” Supreme Court rejected the appeal.
The applicant’s detention was extended on 18 May 2017 because he had not yet seen the final charges against him and the case had not been sent to the trial court, all of which required time; the circumstances that had formed the basis for his initial detention remained valid (serious crime with a high social danger, possibility that he could abscond or interfere with the investigation).
On 2 June 2017 that decision was annulled by the “MRT” Supreme Court, which found that the lower court had not pointed to any factual evidence concerning the risk of the applicant’s interfering with the investigation or absconding; the fact that only the final charges and submission of the file to the trial court were outstanding meant that the applicant had no real possibility of interfering with the course of the investigation; the offence of which he stood accused provided for the possibility of sentencing him to payment of a fine rather than imprisonment; he had a permanent residence in the “MRT” territory and had a good reputation.
2. Conditions of the applicant’s detention
The applicant describes in the following manner the conditions in which he was held during the five initial days in the underground detention facility (IVS) at Tiraspol police headquarters: the air was not fresh; the cell was damp, cold and dirty, filled with parasitic insects; tap water was virtually impossible to drink and no other water was provided; food was inedible and was provided for the first time during the second day of detention. During his detention there he had no access to a shower and could not change his clothes. Moreover, he informed the authorities that he suffered from high blood pressure and cardio-vascular problems and asked to use a tonometer, which was refused. He was not examined by a doctor upon his placement in detention.
The applicant described in the following manner the conditions in colony no. 3 in Tiraspol, where he was detained for the next 66 days: he was detained with six other persons, some of whom allegedly had infectious (fungal) diseases, in a dump and dirty cell with a strong smell, filled with parasitic insects; the food and water provided were virtually impossible to consume. He allegedly lost eight kilograms of weight during this time. Moreover, while under the effect of these conditions of detention, the applicant was subjected to questioning by the investigators.
3. Complaints to Moldovan and Russian authorities
The applicant complained about the breach of his rights to the Moldovan Prosecutor General’s Office, the Russian Prosecutor General’s Office and the Russian Embassy in Moldova.
On 18 September 2017 he was informed by the Bender police inspectorate (a subdivision of the Moldovan police) that a criminal investigation had been opened following his complaint. On 22 September 2017 he was heard as an aggrieved party in that case.
B. Relevant materials
The relevant materials have been summarised in Mozer v. the Republic of Moldova and Russia [GC] (no. 11138/10, §§ 61-77, ECHR 2016).
COMPLAINTS
1. The applicant complains under Article 3 of the Convention that he was unlawfully held in inhuman conditions of detention and was deprived of medical assistance required by his condition.
2. He also complains of a breach of Article 5 § 1 (c) about his detention ordered by a court not having the competence to do so since it had been created contrary to Moldovan law. Moreover, the initial detention order did not specify for how long it was valid.
3. He further complains under Article 5 § 3 that the courts which ordered his detention and then extended it did not rely on relevant and sufficient reasons for doing so.
4. The applicant finally complains under Article 13 that he did not have an effective remedy in respect of his other complaints.
QUESTIONS TO THE PARTIES
A. As to the admissibility
1. Did the applicant come within the jurisdiction of the Republic of Moldova and/or the Russian Federation 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), Catan and Others v. Moldova and Russia [GC] (nos. 43370/04, 8252/05 and 18454/06, §§ 102-123, 19 October 2012; and Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, ECHR 2016) on account of the circumstances of the present case?
In that connection, bearing in mind that up until now the Grand Chamber’s conclusions have generally been based on a lack of convincing and new information from the Governments concerned, the Court again invites the latter to reply to the question whether there has been any development following the period under consideration in the case of Mozer – that is, after July 2010 – which might have an effect on their respective responsibilities. In this context, the Governments, in particular the Government of Russia, are asked:
(a) to provide the Court with any tangible information and any relevant argument capable of establishing that, since July 2010, Russia has no longer been exercising effective control and/or decisive influence over the authorities of the self-proclaimed Moldavian Republic of Transdniestria (the “MRT”),
(b) to express their opinion – with supporting documents and referring specifically to the rules governing the courts’ structure and to the existing body of case-law – on the question whether, since that date, the “MRT” courts, including the Constitutional Court set up on 12 June 2002, can be regarded as independent and impartial and deemed to have become part of a judicial system operating on a constitutional and legal basis reflecting a judicial tradition that conforms to the Convention and respects the rule of law. In order to answer this question, the Court invites the Governments concerned, particularly Russia, to use, as appropriate, the diplomatic channels and means available to them for the purposes of gathering the required information from the Transdniestrian judicial authorities and to communicate it to the Court.
B. As to the merits
2. Has there been a violation of Article 3 of the Convention in the present case? In particular, was the applicant held in inhuman and/or degrading conditions of detention and was he provided with medical assistance required by his state of health (see, for instance, Mozer, cited above, §§ 107-184)?
3. Do the circumstances of the case reveal a breach of Article 5 § 1 of the Convention? In particular, could “MRT courts” and other “MRT authorities” order the applicant’s “lawful arrest or detention” within the meaning of Article 5 § 1 of the Convention (see llașcu and Others v. Moldova and Russia [GC], no. 48787/99, §§ 436, 461 and 462, ECHR 2004-VII, and Mozer v. the Republic of Moldova and Russia, cited above, § 150)?
4. Has there been a violation of Article 5 § 3 of the Convention? In particular, did the courts that ordered and then extended the applicant’s detention give “relevant and sufficient reasons”, within the meaning of that provision (see, for instance, Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 87-91 and 115-123, ECHR 2016 (extracts))?
5. Did the applicant have effective remedies, within the meaning of Article 13 of the Convention, in respect of his complaints under Article 3 (see Mozer, cited above, §§ 202-218)?
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