CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 29 mars 2011

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s76CF415B { page-break-before:always; clear:both } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sA5E34492 { width:18.86pt; display:inline-block } .sB2998F02 { width:154.72pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } THIRD SECTION DECISION Application no. 15594/06 by Valeriu PASAT against Moldova The European Court of Human Rights (Third Section), sitting on 29   March 2011 as a Chamber composed of:   Josep Casadevall, President,   Corneliu Bîrsan,   Alvina Gyulumyan,   Ján Šikuta,   Luis López Guerra,   Nona Tsotsoria,   Mihai Poalelungi, judges, and Santiago Quesada, Section Registrar, Having regard to the above application lodged on 18 April 2006, Having regard to the declarations submitted by the respondent Government on 31 March 2010 and 9 December 2010 requesting the Court to strike the application out of the list of cases and the applicant’s replies to those declarations, Having deliberated, decides as follows: THE FACTS The applicant, Mr Valeriu Pasat, is a Moldovan national who was born in 1958 and lives in Chişinău. He was represented before the Court by Ms   J.   Hanganu, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The applicant’s arrest and criminal proceedings against him On 11 March 2005 the applicant was arrested by the police. He was accused of having authorised in October 1997, as Minister of Defence, the sale of 21 MIG-29 fighter jets and related equipment to the United States of America (“the USA”), for a lower price than that offered by some potential buyers from Iran and the Republic of Yemen. He was also accused of having authorised the sale of artillery equipment to a company from Slovakia for a lower price than its real value. The applicant declared that his arrest was politically motivated and that the criminal case was fabricated by those in power (at the time, the Communist Party of Moldova (“the CPM”)), and that Mr V. Voronin (the head of the CPM and President of Moldova) was personally responsible. On 14 March 2005 the Buiucani District Court issued a warrant for the applicant’s remand in custody for 10 days. The reasons given by the court for issuing the warrant were that: “[The applicant] is suspected of having committed an offence for which the law provides imprisonment of three to eight years; the suspect could [abscond in order to] avoid criminal responsibility and could obstruct the finding of truth in the criminal investigation”. It appears that no appeal was lodged against that decision. On 17 January 2006 the Buiucani District Court found the applicant guilty as charged and sentenced him to ten years’ imprisonment and a five ­ year injunction banning him from exercising certain functions. On 8 February 2006 he appealed. On 20 March 2006 the applicant asked for the suspension of enforcement of his sentence. On the same day the Chişinău Court of Appeal rejected this request. On 3 April 2006 the applicant asked for the preventive measure of arrest to be replaced by another measure, given his health problems. On the same day the Chişinău Court of Appeal rejected that request, finding that the applicant had not shown that he needed medical assistance of a type not available in the prison hospital in which he was being held. On 10 April 2006 the applicant asked for the annulment of the preventive measure of arrest, on the ground that it was contrary to Article 5 of the Convention. He argued that he was being held in detention for an indefinite period of time. Since the Chişinău Court of Appeal had asked the judicial authorities in the USA to carry out certain investigative acts and since there was no mutual assistance treaty between the two countries in that sphere, his detention could last for an unknown period of time before the relevant acts were carried out in the USA. The applicant added that none of the courts had given sufficient reasons for his detention and that his state of health required special medical treatment not available in the prison hospital. On the same day the Chişinău Court of Appeal rejected the request, finding that no evidence had been submitted concerning the need for medical treatment outside the prison hospital. Moreover, the Chişinău Court of Appeal would set a specific date for its next hearing, while all the other arguments had already been raised in the previous requests. As for the alleged insufficiency of the reasons for the applicant’s detention, they could be reviewed only in the process of deciding on the applicant’s appeal against the first-instance court judgment. The applicant made similar habeas corpus requests on 15 May, 2 and 30   June and 4 September 2006. All of them were rejected by the courts with similar reasons, namely, that no new circumstance had arisen warranting a re-examination of the need for the applicant’s detention. On 16 October 2006 the Chişinău Court of Appeal partly upheld the applicant’s conviction, acquitting him of the charge of the sale of the fighter jets. On 3 May 2007 the Supreme Court of Justice quashed the judgment of 16   October 2006 and ordered a re-examination of the case by the Chişinău Court of Appeal. The court also decided “to maintain the same preventive measure as that already imposed on [the applicant] – detention”. On 25 June 2007 the applicant lodged a habeas corpus request, arguing that no court had ever given sufficient reasons for his detention. Moreover, the quashing of the lower court’s judgment automatically meant that the preventive measure had lost its validity and could thus not be upheld by the Supreme Court of Justice, while no new measure had been imposed. The court did not examine that request at its hearing of 25 June 2007, and on 26   June 2007 the applicant repeated it. On 9 July 2007 the Chişinău Court of Appeal reheard the case and acquitted the applicant of one of the charges (the sale of the fighter jets), while upholding his conviction of the other charge (the sale of artillery equipment). Having thus sentenced the applicant to five years’ imprisonment, the court found that an amnesty law applied and relieved him from serving his sentence, ordering his immediate release. Having been released, the applicant resumed his job in Moscow, where he was an adviser to the CEO of RAO EES energy company in Russia. On 2 April 2008 the Supreme Court of Justice quashed the lower court’s judgment and ordered a rehearing of the case by the Chişinău Court of Appeal. On 17 July 2009 the Chişinău Court of Appeal acquitted the applicant of all the charges against him. On 16 December 2009 the Supreme Court of Justice upheld that judgment, which therefore became final. 2.     Medical assistance while in detention On 25 April 2006 the applicant asked for permission to be examined by an independent medical commission, in view of his concerns that he had medical problems which had not been identified and treated by the doctors at the prison hospital. On 27 April 2006 the Chişinău Court of Appeal accepted the request and authorised the medical commission mentioned in the applicant’s request to examine him. On 5 May 2006 the Department of Penitentiary Institutions (“the DPI”) refused the applicant’s request to allow an independent medical commission to examine him, noting that such access would be granted “after medical investigations [had been] completed by the doctors of the Military Hospital of the Ministry of Internal Affairs”. On 15 May 2006 the Chişinău Court of Appeal again allowed the independent medical commission to examine the applicant. Accordingly, a team of doctors practising in Ukraine was invited to come to Moldova on 27   May 2006, and the DPI was informed of the forthcoming visit. On 22 May 2006 a medical commission created by the Ministry of Health established that the applicant suffered from some nineteen various illnesses. He was prescribed a number of further examinations. On 23 May 2006 the DPI informed the applicant that it refused the independent medical commission access to the prison, since no proof had been submitted that the doctors had the right to practise medicine in Moldova. On 31 May 2006 the applicant was transferred to prison no.   13. According to the applicant, his transfer was made before he had undergone any course of treatment in the military hospital and before all the examinations prescribed by the doctors on 22 May 2006 had been carried out. On 2 June 2006 the applicant complained to the Chişinău Court of Appeal that his premature transfer to prison no. 13 had amounted to a violation of Article 3 of the Convention. He also complained about the DPI’s refusal to allow an independent medical commission to examine him, despite two court orders authorising it. On the same day, the court accepted the applicant’s request and ordered the DPI to allow the independent medical commission access in order to examine the applicant. The court also ordered the applicant’s transfer back to the military hospital so that all the examinations prescribed by the doctors on 22 May 2006 could be carried out, without any police officers being present. According to the applicant, during his detention in prison no. 13 he was held in a separate cell located in an annex, the only entrance to which was via a courtyard. He had, therefore, no means of communication with those on the inside of the prison itself and he would not be heard by the prison guards if he had a medical emergency, which was possible, given his medical condition. Moreover, he was never visited by a doctor in prison no.   13. In response to his complaint concerning the conditions of detention, the courts ordered his transfer to the military hospital, which was delayed for six days. COMPLAINTS 1.     The applicant complained under Article 3 of the Convention that he had not been given sufficient medical assistance while in detention and had been prevented from independently verifying the extent of his health problems, in the absence of the police. 2.     He also complained under Article 5 § 1 of the Convention that he had been arrested in the absence of a reasonable suspicion of having committed a crime. 3.     He further complained, under the same Article, that he had been detained without a legal basis and for an indefinite period of time. 4.     The applicant also complained, under Article 5 § 3 of the Convention, that the courts had failed to give relevant and sufficient reasons for his detention. 5.     He finally complained, under Article 5 § 4 of the Convention, that a number of his habeas corpus requests had not been examined within a reasonable time. THE LAW By letter dated 31 March 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 5 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, the Government acknowledge that there has been a violation of the applicant’s right guaranteed by Article 5 § 1(c) of the Convention, in particular that his arrest did not have a legal basis after the expiry of the term set in each court order to keep him in detention. Moreover, if the Court will consider necessary to examine the issue of alleged violations under Articles 5 § 3 and 5 § 4 of the Convention, despite the Government’s acknowledgment of a violation of the applicant’s rights guaranteed by Article 5 §   1(c) of the Convention, they declare as follows: The Government acknowledge that in the applicant’s case the domestic courts failed to adduce relevant and sufficient reasons for their decisions ordering and then extending the applicant’s detention on remand, in breach of Article 5 § 3 of the Convention, as well as that the courts infringed on the applicant’s right, as it is provided for by Article 5 § 4 of the Convention, due to the unreasonable time of examination of his habeas corpus requests. 4.   The Government’s acknowledgment of the infringements concerning the above mentioned applicant’s rights means that it is necessary to award him some amounts of money, which is intended to cover the alleged non-pecuniary damage, as well as for costs and expenses. 5.   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. 6.   Regarding the circumstances of the case and bearing in mind the evolution of the criminal proceedings against the applicant, the Government stress that the applicant was fully acquitted by the domestic courts in the case in connection with which he was arrested... Moreover, all of the criminal proceedings against the applicant pending before the prosecution authorities were discontinued ... Thus the applicant is entitled under the provisions of the Law no. 1545 to claim compensation for illegal detention and unlawful accusation. 7.   Bearing in mind the extremely sensitive character of the application and the emotional attitude of the applicant regarding the previous facts and circumstances of the case, the Government are not ready to assess the amount that should be awarded to the applicant as compensation for the pecuniary and non-pecuniary damage, as well as costs and expenses. Accordingly, the Government leave the issue regarding just satisfaction amount to be solved at the discretion of the Court.” In a letter of 24 May 2010 the applicant’s lawyer expressed her client’s satisfaction with the Government’s acknowledgment of all the violations alleged. She claimed 2.5 million euros (EUR) in compensation for the damage caused to her client, referring to the unique character of the case, which included a politically motivated prosecution and arrest of a former Minister and member of the Moldovan Academy of Sciences. Moreover, his case received a lot of media attention in Moldova and in various human rights reports abroad. His wife and daughter had been humiliated when visiting him in prison and his own suffering was accentuated by the refusal to allow independent medical investigations, despite judicial authorisation for such investigations. By letter dated 9 December 2010 the Government submitted a further declaration, amending their previous declaration. They referred to their acknowledgment of the violations of the applicant’s rights made in the previous declaration and undertook to pay the applicant EUR   12,000 (twelve thousand) to cover any pecuniary and non-pecuniary damage as well as costs and expenses. The payment would be effected within a period of three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay within that period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points. They further requested the Court to strike out the application in accordance with Article 37 of the Convention. In her letter dated 9 February 2011 the applicant’s lawyer submitted that the amount proposed by the Government did not constitute sufficient just satisfaction for her client’s suffering and did not create a deterrent effect against future similar violations. 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. In this connection, it notes that the parties have failed to reach an agreement in the present case. 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 , (preliminary issue) [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 5 (see, for example, Sarban , cited above, §§ 118-124, Boicenco , cited above, §§   148 ­ 154, and Modarca v. Moldova , no. 14437/05, §§ 70-74, 10 May 2007). Having regard to the nature of the admissions contained in the Government’s declaration of 31 March 2010, as well as the amount of compensation proposed in the declaration of 9 December 2010 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 of 31   March and 9 December 2010, and the modalities for ensuring compliance with the undertakings referred to therein; and Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.   Santiago Quesada   Josep Casadevall   Registrar   President