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FOURTH
SECTION
CASE OF
ROTARU v. MOLDOVA
(Application
no. 51216/06)
JUDGMENT
STRASBOURG
15
February 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Rotaru v. Moldova,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
Ján
Šikuta,
Mihai
Poalelungi,
Nebojša
Vučinić,
Vincent
A. de Gaetano,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 25 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 51216/06) against the Republic
of Moldova lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Moldovan national, Mr Veaceslav Rotaru (“the
applicant”), on 21 September 2006.
- The
applicant, who had been granted legal aid, was represented by Mr V.
Ţurcan, a lawyer practising in
Chişinău. The Moldovan Government (“the Government”)
were represented by their Agent, Mr V. Grosu.
- The
applicant alleged, in particular, that he had been ill-treated by the
police after his arrest and had been detained in inhuman conditions,
and that his procedural rights had been violated during the criminal
proceedings.
- The
application was allocated to the Fourth Section of the Court. On
30 June 2009 a Chamber of the Section decided to communicate the
application to the Government. Under the provisions of Article 29 §
1 of the Convention, it was decided to examine the merits of the
application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1977 and lives in Taraclia.
1. The applicant's arrest and conviction
- On
14 February 2003 the applicant was arrested at his home by masked and
armed police officers, who allegedly tortured him until he confessed
to several crimes of theft and robbery.
- The applicant lodged a complaint of ill-treatment by
the police and asked the prosecutor's office to investigate. On 28
February 2004 his complaint was dismissed as unfounded by the
Chişinău chief of police. The applicant challenged that
decision before the prosecutor's office. On 11 August 2005 a
prosecutor from the Chişinău prosecutor's office decided
not to initiate criminal proceedings against the police officers,
finding that there was no evidence of the applicant's ill-treatment
or of any other unlawful act. The applicant challenged that decision
before the investigating judge, who decided to forward it to the
trial court for examination as part of the criminal proceedings
against the applicant.
- On 8 June 2005 the applicant was convicted by Rîşcani
District Court. That conviction was upheld by the Chişinău
Court of Appeal on 27 October 2005 and the Supreme Court of
Justice on 15 March 2006. On 6 October 2008 the Supreme Court of
Justice allowed an extraordinary appeal (recurs în
anulare) by the applicant, but only in respect of reducing
his sentence in accordance with a new law that was more favourable to
him.
2. Conditions of detention
- On 19 March 2003 the applicant was transferred to
Chişinău Prison no. 13. Between 16 April and 2
November 2006 he was treated at the Pruncul prison hospital. He was
then transferred to Soroca Prison no. 6, where he served the
rest of his sentence.
- The
applicant made a number of complaints to the authorities that the
conditions of his detention were inhuman. He received numerous
replies from the Ministry of Justice, the Prosecutor General's Office
and Parliament. Many of these replies noted that he had been found to
be “healthy for all practical purposes” and not in need
of medical assistance. Some of the letters also noted that, due to
insufficient funding of the prison system, detainees were not
provided with bed linen, and food was available in less than the
minimum prescribed quantities. In a letter of 10 August 2004 the
Prosecutor General's Office informed the applicant that it was aware
that cell no. 24 in which he was detained was overcrowded and that
not all its inmates had a bed and bed linen. The prison authorities
were asked to remedy the situation. In a letter of 5 November 2004
the Ministry of Justice informed a group of nine detainees, including
the applicant, that medical assistance was available when needed and
that only minor repairs could be made to the cells, due to lack of
funds; the Ministry was aware of the problems in ensuring the proper
functioning of the prison system, and was taking all necessary
measures to improve the situation. The Minister added that no
detainees suffering from tuberculosis were being held in the nearby
cell 24A. In April 2006 the applicant was diagnosed with
tuberculosis.
- In a letter to the Parliament dated 4 May 2004 the
applicant complained that the cells in the prison were overcrowded,
damp and full of parasitic insects. He also complained of a lack of
legal information in the prison. This letter was forwarded to the
Prison Department of the Ministry of Justice. In its reply of 8 June
2004 the Ministry acknowledged that the prison lacked legal
information, and confirmed that after 7 April 2003 the applicant had
been treated for piodermia and scabies. It also noted that the
applicant was detained in a cell with fourteen beds and fifteen
detainees.
- In response to a complaint by the applicant on 14
February 2007, on 1 March 2007 the Ministry of Justice informed
the applicant that under the applicable rules all detainees were
provided with the minimum acceptable quantities of food. However, due
to lack of funding, such items as meat, fish or dairy products were
provided “within the limits of available funds”.
Moreover, products such as eggs, butter and milk would be included on
the menu in the near future.
On
the basis of a doctor's prescription, increased quantities of food
could be provided to detainees who were ill. On 14 June 2008 the
applicant made another complaint that the rules on food to be served
were being violated and asking for a transfer to the prison hospital
because of his worsening state of health. It appears that he was not
transferred to the hospital.
- According to the documents submitted by the
Government, the applicant was treated on a regular basis by various
doctors when the need arose, as well as on a preventive basis. On 10
and 17 February and 28 March 2005 he refused to have X-ray
examinations. When he did have such an examination, on 15 April 2006,
he was diagnosed with tuberculosis and admitted to the Pruncul Prison
Hospital. He received DOTS treatment there until 1 November 2006,
when he was released – subject to a one-year period of
supervision – after full recovery from his illness.
II. RELEVANT NON-CONVENTION MATERIAL
- The
relevant provisions of domestic law have been set out in Ostrovar
v. Moldova, no. 35207/03, 13 September 2005; Sarban
v. Moldova, no. 3456/05, 4 October 2005; and Becciev
v. Moldova, no. 9190/03, 4 October 2005.
1. Relevant domestic law and practice
- The
Government submitted a list of laws, regulations, Ministerial orders
and other acts or bills yet to be enacted aimed at improving various
aspects of prison conditions and the medical treatment of detainees.
- The Government annexed to their observations copies of
judgments in the cases of Drugaliov v. the Ministry of Internal
Affairs and the Ministry of Finance; Gristiuc v. the Ministry
of Finance and the Penitentiaries' Department; Ipate v. the
Penitentiaries' Department; and Ciorap v. the Ministry of
Finance, the Ministry of Internal Affairs and the Prosecutor
General's Office, all cases in which the applicants had been
awarded compensation for ill-treatment and/or inhuman conditions of
detention.
2. Reports of the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
- The relevant parts of the CPT report concerning the
visit to Moldova between 20 and 30 September 2004 read as follows
(unofficial translation):
“50. The CPT delegation again heard
repeated complaints from persons charged with and convicted of
administrative offences concerning the refusal of permission for them
to receive visits or have contact with the outside world in EDPs.
The CPT reiterates (see paragraph 61 of the report on
the 2001 visit) that, where persons awaiting trial are concerned, if
it is necessary in the interests of the investigation to place
restrictions on visits for some of them, the restrictions should be
strictly limited in time and applied for the shortest period
possible. In no circumstances should visits to a detained person by
family and friends be prohibited for a prolonged period. If there is
thought to be an ongoing risk of collusion, it is better to allow
visits under strict supervision. ...
55. The situation in the majority of
penitentiaries visited, in view of the economic situation in the
country, remained difficult and the delegation encountered a number
of problems already identified during its visits in 1998 and 2001 in
terms of physical conditions and detention regimes.
Added to this is the problem of overcrowding, which
remains serious. In fact, even though the penitentiaries visited were
not operating at their full capacity – as is the case of Prison
no. 3 in which the number of detainees was appreciably smaller than
during the last visit of the Committee – they continued to be
extremely congested. In fact, the receiving capacity was still based
on a very unsatisfactory 2 m2 per detainee; in practice,
this was often even less.
79. The follow-up visit to Prison no.3 in
Chişinău revealed an unsatisfactory situation. The progress
noted was in fact minimal, limited to some running repairs. The
ventilation system had been repaired primarily thanks to the
financial support of civil society (especially NGOs), and the
creation of places for daily recreation had been made possible only
as a result of contributions by the detainees and their families.
The repair, renovation and maintenance of cells are
entirely the responsibility of detainees themselves and of their
families, who also pay for the necessary materials. They must also
obtain their own sheets and blankets, the institution being able to
give them only used mattresses.
In sum, the conditions in the great majority of cells in
Blocks I-II and the transit cells continue to be very poor indeed.
...
Finally, despite the drastic reduction in overcrowding,
the rate of occupancy of cells is still very high, not to say
intolerable.
83. Except in the Lipcani Re-education Colony
for Minors, where the efforts made in this respect are to be
highlighted, the quantity and quality of detainees' food everywhere
is a source of grave concern. The delegation was inundated with
complaints regarding the absence of meat and dairy products. The
findings of the delegation, regarding both the stocks of food and the
menus, confirm the credibility of these complaints. Its findings also
confirmed that in certain places (in Prison no. 3, ...), the
food served was repulsive and virtually inedible (for instance,
insects and vermin were present). This is not surprising given the
general state of the kitchens and their modest equipment.
The Moldovan authorities have always claimed financial
difficulties in ensuring the adequate feeding of detainees. However,
the Committee insists that this is a fundamental requirement of life
which must be ensured by the State to persons in its charge and that
nothing can exonerate it from such responsibility. ...”
- The relevant parts of the CPT report concerning the
visit to Moldova between 14 and 24 September 2007 read as follows
(unofficial translation):
“46. In September 2007, the Director of
the Prison Department of the Ministry of Justice provided the
delegation with detailed information on measures already taken or
planned with a view to reforming the Moldovan prison system and
implementing the CPT's recommendations. One particularly welcome
outcome of these measures is the reduction of the country's prisoner
population. At the time of the 2007 visit, the total number of
prisoners stood at 8,033 (including 1,290 on remand), compared to
10,591 in 2004. This positive trend can be attributed to
legislative changes in recent years, including the entry into force
of a new Code of Execution of Sentences in July 2005 and the adoption
of amendments to the Criminal Code and the Code of Criminal
Procedure. As a result, there has been an increase in the number of
conditional early releases, as well as a wider use of alternatives to
imprisonment and a more selective application of remand custody by
the courts.
Further, the implementation of the “Concept for
reforming the penitentiary system in the period 2004-2013” has
been supported by an increase in the budgetary allocation (from 75.8
mn Lei in 2004, to 166.1 mn Lei in 2007), as well as by a growing
input of foreign aid. This has enabled, inter alia, the amelioration
of the food provided to prisoners, an improvement of health care, and
the carrying out of refurbishment works at several penitentiary
establishments (e.g. No. 1 in Taraclia, No. 7 in Rusca and No.
17 in Rezina).
Last but not least, there has been an important shift
in mentality through improved staff recruitment and training
procedures. The delegation was informed that the directors of many
penitentiary establishments had been changed in the last year,
following a competition and a probation period. Further, new training
programmes for staff had been developed, placing particular emphasis
on human rights issues (see also paragraph 100).
47. The CPT can only welcome the
above-mentioned measures taken the Moldovan authorities.
Nevertheless, the information gathered by the Committee's delegation
during the 2007 visit shows that much remains to be done. In
particular, overcrowding continues to be a problem; despite the fact
that all establishments visited were operating well under their
official capacities, there was on average only 2 m² of living
space per prisoner, rather than the standard of 4 m² provided
for in Moldovan legislation.
The CPT is convinced that the only viable way to
control overcrowding and achieve the standard of at least 4 m²
of living space per prisoner is to adopt policies designed to limit
or modulate the number of persons sent to prison. In this connection,
the Committee must stress the need for a strategy covering both
admission to and release from prison to ensure that imprisonment
really is the ultimate remedy. This implies, in the first place, an
emphasis on non-custodial measures in the period before the
imposition of a sentence and, in the second place, the adoption of
measures which facilitate the reintegration into society of persons
who have been deprived of their liberty.
The CPT trusts that the Moldovan authorities will
continue their efforts to combat prison overcrowding and in so doing,
will be guided by Recommendation Rec(99)22 of the Committee of
Ministers of the Council of Europe concerning prison overcrowding and
prison population inflation, as well as Recommendation Rec(2003)22 on
conditional release (parole).”
THE LAW
- The
applicant complained under Article 2 of the Convention that he had
been “intentionally deprived of his health, which also means
life” by being kept in inhuman conditions of detention, which
had led to his contracting tuberculosis, and that he had not been
provided with sufficient medical assistance. The Court considers that
this complaint should be examined under Article 3 of the Convention.
The applicant also complained under Article 3 that he had been
ill-treated by the police when arrested in order to make him confess
to crimes which he had not committed.
Article 3
reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- He
also complained under Article 6 of the Convention that the courts had
wrongfully convicted him and failed to examine defence witnesses,
relying instead on evidence obtained through ill-treatment. The
relevant part of Article 6 reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
applicant lastly complained under Article 13 of the Convention
without giving any further details.
Article 13
reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
I. ADMISSIBILITY
- The
Government submitted that the applicant had failed to exhaust
available domestic remedies in respect of his complaint under Article
3 of the Convention. In particular, he could have lodged a civil
court action seeking compensation for the alleged violation, similar
to those brought successfully by the applicants in the above-cited
cases of Drugaliov, Gristiuc, Ipate and Ciorap
(see paragraph 16 above). Moreover, the complaints about the
conditions of detention which the applicant had made to the prison
authorities were “not credible” and were unfounded.
- The
applicant disagreed, referring to his complaints to various
authorities, including Parliament, and to the refusal of those
authorities to acknowledge any breach of his rights. That refusal
combined with the total absence of access to legal materials and of
any suggestion in the replies received that he could lodge a claim in
the civil courts, meant that the remedy relied on by the Government
was not effective.
- The
Court reiterates that an individual is not required to try more than
one avenue of redress when there are several available (see, for
example, Airey v. Ireland, 9 October 1979, § 23, Series A
no. 32. It is clear from the documents submitted to the Court by the
parties that the applicant complained of his conditions of detention
on several occasions (see paragraphs 9-12 above).
- In
so far as the other remedy referred to by the Government is
concerned, namely a civil action to request an immediate end to the
alleged violation, the Court observes that it has already found that
that procedure does not constitute an “effective remedy”
in respect of ongoing violations of Article 3 of the Convention
(see Holomiov v. Moldova, no. 30649/05, § 107,
7 November 2006). In Holomiov the Court found as follows:
“[T]he Court does not consider that, at the
present time, the existence of an effective remedy before the
national courts for the applicant's complaint about the lack of
adequate medical care in his place of detention has been clearly
established. However, the Court may in future reconsider its position
if it is informed of consistent application of the Convention by the
domestic courts”.
All
the cases relied on by the Government in the present case concern
compensation awards for past violations of Article 3 similar to those
relied on in Holomiov. However, the applicant remains in
custody and made complaints about his conditions of detention as late
as 2008 (see paragraph 12 above). Therefore, the cases referred
to by the Government do not affect the findings in Holomiov.
- In his initial application the applicant also
complained of a violation of Article 3 of the Convention as a result
of his ill-treatment by the police and failure to carry out an
effective investigation into his ill-treatment. He further complained
under Article 6 of the Convention of various breaches of his
procedural rights. The Court notes that the prosecution refused to
initiate an investigation into the applicant's alleged ill-treatment
on 11 August 2005 and that his final conviction was handed down by
the Supreme Court of Justice on 15 March 2006 (see paragraphs 7 and 8
above). The applicant did not claim that there had been a delay in
informing him of the decision of the Supreme Court of Justice.
Accordingly, the six-month period for lodging a complaint concerning
the shortcomings of the proceedings against the applicant or the
investigation into his alleged ill-treatment started running on 15
March 2006. The present application was lodged on 21 September
2006, six days after the expiry of the above-mentioned six-month
period. The subsequent decision of the Supreme Court of Justice of 6
October 2008, adopted as part of an extraordinary procedure, did not
deal with any issues concerning the applicant's guilt or his
allegations of ill-treatment, but only the reduction of his penalty
due to the application of a more lenient criminal law which had come
into force in the meantime. Therefore, this decision did not restart
the running of the six-month period (see Fernie v. United Kingdom
(dec.), no. 14881/04, 5 January 2006).
It
follows that the applicant's complaints under Article 3 (his alleged
ill-treatment) and Article 6 were introduced outside
the time-limit set by Article 35 § 1 of the Convention and
must be rejected as inadmissible pursuant to Article 35 § 4 of
the Convention.
27. The
Court finds therefore that the complaint under Article 3 of the
Convention cannot be declared inadmissible for non-exhaustion of
domestic remedies and accordingly the Government's objection must be
dismissed. It considers that the applicant's complaints under
Articles 3 (conditions of detention) and 13 of the Convention raise
questions of fact and law which are sufficiently serious for their
determination to depend on an examination of the merits. No other
grounds for declaring them inadmissible have been established. The
Court therefore declares these complaints admissible.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
A. Arguments of the parties
- The
applicant complained of the inhuman and degrading conditions of his
detention. In particular, he was imprisoned without any particular
health problems, but as a result of the conditions in which he was
detained he became ill with tuberculosis and other illnesses.
Moreover, despite the growing number of normative acts aimed at
improving prison conditions, there had been very little change in
reality, as established on many occasions by the CPT (quality of
food, overcrowding, access to daylight, and so on).
- The
Government argued that the applicant had been detained in conditions
compliant with Article 3 requirements. In particular, they submitted
a copy of the applicant's note in which he mentioned that on
30 November 2004 he had been moved to another cell, in which the
conditions of detention were acceptable. Moreover, he was offered
medical assistance on a number of occasions and was fully treated for
tuberculosis after DOTS treatment in the prison hospital. The fact
that he had refused to have X-ray examinations in early 2005 (see
paragraph 13 above) meant that he was responsible for the failure to
discover his illness at an earlier stage. Therefore, the applicant
could not claim that the authorities had failed to fulfil their
positive obligations to prevent and treat illnesses such as
tuberculosis.
Moreover, the Government submitted that CPT reports could not lead to
automatic findings of violations of Article 3 in the absence of
evidence of the applicant's individual suffering (see Gorea v.
Moldova, no. 21984/05, §§ 40-51, 17 July
2007).
B. The Court's assessment
- The
Court reiterates that Article 3 of the Convention enshrines one of
the most fundamental values of a democratic society. It prohibits in
absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the circumstances and the victim's
behaviour (see, for example, Labita v. Italy [GC], no
26772/95, § 119, ECHR 2000-IV). It has also found that the
distinction between “torture” and “inhuman or
degrading treatment” was intended to “attach a special
stigma to deliberate inhuman treatment causing very serious and cruel
suffering” (see Ireland v. the United Kingdom,
18 January 1978, § 167, Series A no. 25).
- To
fall within the scope of Article 3 ill-treatment must attain a
minimum level of severity. The assessment of this minimum is
relative; it depends on all the circumstances of the case, such as
the duration of the treatment, its physical and mental effects and,
in some cases, the sex, age and state of health of the victim (see,
for example, Ireland v. the United Kingdom, cited above, §
162).
- The
State must ensure that a person is detained in conditions which are
compatible with respect for his human dignity, that the manner and
method of the execution of the measure do not subject him to distress
or hardship of an intensity exceeding the unavoidable level of
suffering inherent in detention and that, given the practical demands
of imprisonment, his health and well-being are adequately secured by,
among other things, providing him with the requisite medical
assistance (see Kudła v. Poland [GC], no. 30210/96,
§ 94, ECHR 2000 XI). When assessing conditions of
detention, account has to be taken of the cumulative effects of those
conditions and the duration of the detention (see Ostrovar v.
Moldova, no. 35207/03, § 80, 13 September 2005).
- In
the present case the Government implicitly acknowledged that the
conditions of the applicant's detention prior to November 2004 had
been substandard. They argued that following his many complaints, on
30 November 2004 the applicant had been transferred to another
cell, which offered acceptable conditions of detention, as he himself
admitted at the time.
- The
Court notes, however, that the applicant continued to complain about
his conditions of detention after that date, notably in respect of
the quality of food in 2007 and 2008 (see paragraph 12 above). It
also notes the Ministry of Justice's acknowledgment, on 1 March 2007,
that due to a lack of funding, such items as meat, fish or dairy
products were provided “within the limits of available funds”
and that products such as eggs, butter and milk were soon to be
included on the menu (see paragraph 12 above).
- It
follows that the applicant's complaints concerning the quality of
food served were not spurious but revealed a problem known to the
authorities. This in itself raises a serious issue under Article 3 of
the Convention, as also noted by the CPT in paragraph 83 of its 2004
report (see paragraph 17 above).
- Moreover,
the applicant's particular situation, as someone who had just been
treated for tuberculosis, required a special diet, which could not be
complete without such basic ingredients as dairy products, meat and
fish.
- The
Court reiterates that the mere fact that an applicant prisoner falls
ill with tuberculosis while in detention does not automatically lead
to a finding of a violation of Article 3 of the Convention (see
Gavriliţă v. Romania (dec.), no. 10921/03, 22
June 2010). However, the fact that he contracted tuberculosis gives
additional weight to the applicant's contention that he was detained
in conditions dangerous to his health, notably damp cells and
insufficient and poor food. The applicant rightly points to the fact
that a poor diet leads to increased vulnerability to diseases such as
tuberculosis.
- The
applicant also complained of overcrowding (see paragraphs 9-12
above). It is to be noted that despite the progress made by the
Moldovan authorities in reducing the prison population since 2004,
the statutory minimum of four square metres per detainee has still
not been achieved, as was noted in 2007 by the CPT (see paragraph 18
above).
- It
is also to be noted that the applicant was treated for other
infectious diseases with which he was diagnosed during detention (see
paragraph 11 above). This only emphasises the dangers to
detainees' health posed by overcrowding.
- The
Court finally notes that the applicant has been detained for more
than seven years in such conditions (except for several months in the
prison hospital, which offers better conditions).
- In
the light of the above, the Court considers that the conditions of
the applicant's detention were inhuman, especially when considering
the duration of exposure to such conditions.
- There
has, accordingly, been a violation of Article 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant did not give details about his complaint under Article 13
of the Convention. The Government argued that it was open to the
applicant to claim compensation for any alleged violation of Article
3 in a civil lawsuit.
- The
Court considers that the complaint under Article 13 must be
understood to refer to the alleged lack of effective remedies in
respect of the conditions of detention. In any event, if it referred
to the effectiveness of the investigation, it would be declared
inadmissible, as were the complaints under Articles 3 and 6 (see
paragraph 26 above).
- As
the Court has held on many occasions, Article 13 of the Convention
guarantees the availability at national level of a remedy to enforce
the substance of the Convention rights and freedoms in whatever form
they may happen to be secured in the domestic legal order. The effect
of Article 13 of the Convention is thus to require the provision of a
domestic remedy to deal with the substance of an “arguable
complaint” under the Convention and to grant appropriate
relief.
- The Court reiterates that it has examined on numerous
occasions the issue of domestic remedies by which to complain of poor
conditions of detention in Moldova (see Sarban, cited
above, §§ 57-62; Holomiov v. Moldova, no.
30649/05, §§ 101-107, 7 November 2006; Istratii and
Others v. Moldova, nos. 8721/05, 8705/05 and 8742/05, § 38,
27 March 2007; Modarca v. Moldova, no. 14437/05, §
47, 10 May 2007; and Stepuleac v. Moldova, no. 8207/06, §
46, 6 November 2007), and has concluded on each occasion that the
remedies suggested by the Government were not effective in respect of
individuals currently in detention. In Malai v. Moldova,
no. 7101/06, §§ 42-46, 13 November 2008, the Court found a
violation of Article 13 of the Convention, concluding that “it
has not been shown that effective remedies existed in respect of the
applicant's complaint under Article 3” concerning conditions of
detention. The Government did not submit any valid reason for the
Court to distinguish the present case from Malai, cited above.
- There
has therefore been a breach of Article 13 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- Having
been invited to submit claims for just satisfaction on behalf of his
client, as well as for costs and expenses in relation to the present
application, the applicant's lawyer did not submit any such claims.
He subsequently submitted outside the time-limit an evaluation of the
time he had spent preparing the case, which, being belated, was not
admitted to the file.
- The
Court therefore does not see any reason for making an award under
Article 41 of the Convention. It notes in this connection that the
applicant's lawyer received 850 euros by way of legal aid from the
Council of Europe.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 3
(conditions of detention) and 13 admissible, and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention.
Done in English, and notified in writing on 15 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
