THIRD SECTION
DECISION
Application no. 13605/08
by Oleg TALMAZAN
against Moldova
The European Court of Human Rights (Third Section), sitting on 31 May 2011 as a Committee composed of:
Egbert Myjer, President,
Luis López Guerra,
Mihai Poalelungi, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 4 December 2007,
Having regard to the declarations submitted by the respondent Government on 30 June, 13 October and 30 November 2010 requesting the Court to strike the application out of the list of cases and the applicant’s reply to those declarations,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Oleg Talmazan, is a Moldovan national who was born in 1963 and lives in Chişinău. He was represented before the Court by Mr R. Zadoinov, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 August 1998 a criminal investigation was initiated into the alleged defrauding of a bank committed by a group of persons, including the applicant, in 1995.
On 5 March 2004 the applicant was arrested and a court ordered his detention pending trial for 30 days. He was detained in the detention facility of the Department for Fighting Organised Crime (“the DFOC”) at 14 Bucuria Street in Chişinău.
On 6 May 2004 he was released and undertook not to leave the city pending a judgment in his case.
A. Conditions of detention
The applicant describes his conditions of detention as follows. Cell no. 9 in which he was detained was situated in the basement. It measured 16 square metres and 14 to 16 persons were detained in it at the same time. The cell was very humid and not ventilated; there was no window and only a single weak light bulb illuminated the cell. No furniture was available, except for a wooden bench which all the detainees had to share. A bucket in the corner was the sole repository for human waste, and it was always full and smelly. Once a day the applicant was allowed to visit the toilet outside the cell. Once a week he could take a bath. No bed linen was provided. Smoking was allowed in the cell and the applicant, who is not a smoker, suffered from passive smoking.
The food was meagre and inedible. Relatives were prevented from transmitting parcels to the applicant. No contact with the outside world was allowed. The applicant had to wear his clothes from the time of his arrest; there was no possibility to have them washed.
The applicant and his relatives complained to the Prosecutor General’s Office and the Ministry of Internal Affairs about the inhuman conditions of detention and about the impossibility of sending food and bed linen to him. They received formal replies about strict observance of the legislation by the authorities.
The applicant, who is a journalist, wrote a number of articles in which he described in detail the conditions of detention in the detention facility in which he was being detained. These articles were published in several nation-wide newspapers.
B. Medical assistance while in detention
The applicant submits that because of the inhuman conditions of detention he became ill with angina, which was not treated.
On 27 March 2004 at about 5 p.m. he lost consciousness in his cell. An ambulance was called and the doctors found that the applicant had suffered an acute myocardial infarction and had tachycardia and angina. They also noted that the applicant had been “left in place [at the detention facility] by colonel M.”.
On 8 April 2004, at around 4 p.m., the applicant again lost consciousness and an ambulance was called because of suspected myocardial infarction. The earlier diagnosis was confirmed and the doctors noted “refusal by the police of [the applicant’s] in-patient treatment”.
On the same day at around 8 p.m. the ambulance was called again because of applicant’s suspected myocardial infarction. He was then taken to a hospital.
On 6 May 2004 the applicant was released from detention and on 7 May 2004 he sought assistance from the Cardiology Institute in Chişinău.
The applicant never received medical assistance while in detention, apart from the emergency assistance given by the ambulance and while being treated at the hospital.
C. Length of the proceedings and facilities for preparing the defence
The criminal investigation which was initiated on 29 August 1998 was finished in July 2004. The case was submitted to the trial court on 21 July 2004. The judge to whom the case was allocated was on leave until 8 September 2004.
The applicant submitted evidence that numerous court hearings were postponed during the proceedings because of the absence of the prosecutor, prosecution witnesses, or the judges.
On 25 December 2006 the first-instance court adopted its judgment, sentencing the applicant to one year’s imprisonment, suspended for one year. The applicant and the prosecution appealed.
The applicant asked to be allowed to make copies of documents in the file in order to prepare his appeal, but he was not allowed to do so. In his appeal, he expressly complained of the refusal by the staff of the Chişinău Court of Appeal to allow his lawyer to make copies of specific materials in his case. The reason for the refusal was that the law prohibited the making of such copies. He noted that the failure to give him the possibility to make copies impaired the lawyer’s ability to prepare the appeal properly. In an additional appeal dated 17 April 2007 the applicant’s lawyer noted that he had been given access to several additional volumes of case materials, but that again no copies had been allowed.
On 25 April 2007 the Chişinău Court of Appeal held a hearing and adopted its judgment, convicting the applicant and sentencing him to the payment to the aggrieved party of 1.6 million Moldovan lei (MDL, approximately 94,730 euros (EUR) at the time). The court noted, inter alia, that the parties had been given equal opportunity to argue their case and to submit evidence, In particular, at the applicant’s lawyer’s request an expert report had been carried out.
On an unknown date the prosecution lodged an appeal on points of law. On 22 May 2007 the applicant also lodged such an appeal, in which he complained, inter alia, of the refusal to allow his lawyer to make a copy of the allegedly forged documents in order to be able to ask for an independent expert report. Since the allegation that the applicant had falsified another person’s signature was at the heart of the accusation, the need for such an alternative report was paramount.
On 23 October 2007 the Supreme Court of Justice quashed the lower court’s judgment and ordered a rehearing of the case.
On 19 March 2010 the Chişinău Court of Appeal discontinued the proceedings against the applicant in respect of one of the charges and found him guilty on the remainder of the charges, sentencing him to ten years’ imprisonment.
The case is pending before the Supreme Court of Justice.
COMPLAINTS
1. The applicant complained under Article 3 of the Convention that he had been detained in inhuman conditions of detention.
2. He also complained, under the same Article, that he was had not been given the necessary medical assistance while in detention.
3. He further complained under Article 6 § 1 of the Convention of the excessive length of the criminal proceedings in his case.
4. The applicant complained, under the same Article, that he had been deprived of “time and facilities” for the adequate preparation of his defence.
THE LAW
By letter dated 30 June 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“... 2. It appears that the circumstances of the case and the issues raised by the applicant might be the subject of well-established case-law of the Court... [the Government referred to a list of cases in respect of Moldova concerning violations of Articles 3 and 6 of the Convention].
3. The Government, after having analysed the Court’s case-law, make the following unilateral declaration:
The Government acknowledge that the national authorities have failed to provide the applicant with proper medical assistance while in detention [as required] by his state of health, in breach of Article 3 of the Convention.
Also, under the same Convention provision, the Government acknowledge that the applicant was detained at the relevant time in inhuman and degrading conditions of detention, i.e. in detention facility of the Department for Fighting Organised Crime.
Also, the Government acknowledge that there has been a violation of the applicant’s right guaranteed by Article 6 § 1 of the Convention, in particular that the criminal proceedings against him exceeded the “reasonable time” [requirement] within the meaning of the above-mentioned provisions.
Finally, the Government acknowledge that the applicant was deprived of his right to prepare adequately his defence during the trial and, therefore, the violation of Article 6 § 3 of the Convention occurred.
4. In this sense, having regard to the criteria emerging from the Court’s case-law, the Government consider that all the facts mentioned supra and particularly the acknowledgment of a violation of the applicant’s rights would serve at least as a partial just satisfaction for the non-pecuniary damage.
5. Accordingly, the Government ask the Court to strike the present application out of its list, according to the provisions of Article 37 § 1 of the Convention.”
In a letter of 18 August 2010 the applicant expressed the view that the declaration was unacceptable due to the absence from the Government’s declaration of an offer to compensate him. He claimed EUR 20,000 in compensation for non-pecuniary damage, as well as EUR 10,000 in costs and expenses. He also asked for the dropping of all the charges against him in the pending criminal proceedings.
On 13 October 2010 the Government made another declaration, repeating the acknowledgment of the violations of the applicant’s rights and offering a global sum of EUR 5,000 in compensation and costs.
On 30 November 2010 the Government increased the amount offered in compensation to EUR 6,000.
On 2 December 2010 the applicant expressed the view that the sum mentioned in the latest Government’s declaration was unacceptably low, in view of the Court’s case-law in respect of Moldova. He asked for the transfer of any award made by the Court to his lawyer’s account due to the difficulties of using that money while he is in prison.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
The Court has established in a number of cases, including those brought against Moldova, its practice concerning complaints about the violation of Article 3 (medical assistance to detainees – see, for example, Sarban v. Moldova, no. 3456/05, §§ 69-74, 4 October 2005, Boicenco v. Moldova, no. 41088/05, §§ 86-97, 11 July 2006, and Holomiov v. Moldova, no. 30649/05, §§ 109-122, 7 November 2006) and Article 6 §§ 1 and 3 (length of criminal proceedings – see, for example, Holomiov cited above, §§ 132-147). Moreover, it does not appear from the documents submitted by the parties that the procedural shortcomings of the first round of proceedings were repeated in the reopened proceedings. The reopened proceedings are still pending and thus any complaint of fresh procedural violations in these new proceedings is premature.
Having regard to the nature of the admissions contained in the Government’s declaration of 30 June 2010, as well as the amount of compensation proposed in the declaration of 30 November 2010 – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declarations and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Marialena TsirliEgbert Myjer
Deputy RegistrarPresident
Full & Egal Universal Law Academy