CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 octobre 2013

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font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }       THIRD SECTION             CASE OF SEGHETI v. THE REPUBLIC OF MOLDOVA   (Application no. 39584/07)           JUDGMENT       STRASBOURG   15 October 2013       FINAL   15/01/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.     In the case of Segheti v. the Republic of Moldova, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Josep Casadevall, President,   Alvina Gyulumyan,   Ján Šikuta,   Luis López Guerra,   Kristina Pardalos,   Johannes Silvis,   Valeriu Griţco, judges, and Santiago Quesada, Section Registrar, Having deliberated in private on 24 September 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1 .     The case originated in an application (no. 39584/07) 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 Romanian national, Mr Ionel Segheti (“the applicant”), on 30 August 2007. 2.     The applicant was represented by Mr R. Zadoinov, a lawyer practising in Chișinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol. 3.     The applicant alleged, in particular, that he had been held in inhuman conditions of detention. 4.     On 5 January 2010 the application was communicated to the Government. On the same date the Romanian Government were informed of their right to intervene in the proceedings in accordance with Article 36 §   1 of the Convention and Rule 44 § 1(b), but they expressed no wish to avail themselves of this right. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1960 and lives in Cricova. 6 .     The applicant worked as a consultant for the Romanian Embassy in Moldova. On 12 April 2005 he was arrested by Moldovan police in Călăraşi, Moldova, on suspicion of having made false accusations against a third person. While the parties did not submit any copies of judgments concerning the applicant’s criminal proceedings, it follows from his correspondence that on an unknown date he was convicted to eight years’ imprisonment. He was placed in detention in prison no. 3 in Chişinău (previously known as prison no. 13) on 12 April 2005. On 5 October 2006 he was transferred to prison no. 15 in Cricova. On 6 August 2009 he was transferred to the Pruncul prison hospital (prison no. 16), where he received inpatient treatment until 18 August 2009 for hypertension and cardiac insufficiency. A.     The applicant’s description of the conditions of his detention 7.     The applicant described the conditions of his detention in prison no.   3 in Chişinău as follows. He was detained with thirty-nine other people in a 40 sq. m cell without ventilation or heating. Prisoners sometimes had to take turns to sleep and had to wait for a daily time-slot of two to three hours to obtain running tap water, which made hygiene issues in the prison a lot worse. The toilet was located in the cell itself and gave off a foul odour because there were no products to clean it with. The food was inedible. 8.     He described the conditions of his detention in prison no. 15 as follows. On 5 October 2006 he was placed in a cell measuring 60 sq. m with twenty-six other people, which left very little space for each detainee. In the absence of any work or other activities, he had nothing to do and spent most of his time in the cell. 9.     No bedding was given to the applicant and he had to ask his relatives to bring him some. The same was true of items of personal hygiene. He had to wear the same clothes he had been wearing when he was admitted to the prison, since no clothes were provided by the prison administration. 10.     Water from a single tap was available during the day but not at night, and owing to the number of detainees in the cell it was not always possible to have access to it. Food was scarce and of very poor quality. The library contents were old and there were no reading materials about the Convention. The applicant also claimed that he had been given insufficient medical treatment in both detention facilities. B.     The Government’s description of the applicant’s conditions of detention 11 .     According to the Government, the space available to the applicant in various cells of prisons no. 3 and 15 always exceeded 4 sq.m. In particular, in prison no. 15 he was held in a detention block for working prisoners. The first cell he was detained in measured 61.6 sq.m and accommodated fifteen people. Shortly thereafter he was transferred to a cell measuring 30   sq.m, which accommodated three detainees. He was later moved to another cell measuring 24 sq.m, which also accommodated three detainees. All the cells had the correct number beds for detainees and were equipped with a water tap and a toilet. 12.     The Government submitted a list confirming that the applicant was given medical assistance on a number of occasions in both prisons no. 3 and no. 15, including inpatient treatment for an ulcer in 2005. II.     RELEVANT MATERIALS 13 .     The relevant parts of the report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) concerning its visit to Moldova from 20 to 30 September 2004 read as follows (unofficial translation): “54.     The delegation visited five establishments run by the Ministry of Justice: prison no. 3 in Chişinău [and] correctional facilities nos. 4 and 15 in Cricova ... 55.     In view of the economic situation in the country, the situation in the majority of prisons visited remained difficult and the delegation encountered a number of problems already identified during its visits in 1998 and 2001 in terms of the physical conditions of detention and regimes. ... 81.     Correctional facility no. 15 has four detention blocks where the prisoners were divided into different units, according to whether they were classed as workers (units 2, 3, 4 and 6) or non-workers (units 1, 5, 7 and 8). Unlike correctional facility no. 4, despite the shabbiness of the premises, the establishment gave an overall impression of cleanliness and satisfactory upkeep. The laudable efforts made in this regard deserve to be highlighted. But again, much depended on the resources [available to the] prisoners for fitting out and renovating the cells. Physical conditions ranged from acceptable to good on occasion. This was the case as regards unit 5 which held non-working detainees. Other dormitories – while remaining in an acceptable state of upkeep and cleanliness – presented difficult conditions there being, in some cases, fewer beds than occupants, windows with panes missing and a lack of basic amenities, certain essentials (such as mattresses, sheets, blankets or crockery) having been obtained through the charity of fellow-prisoners. Again, living space was often restricted in some of the dormitories, a situation which was partially alleviated by an open-door policy within the sections. 83.     Except in the Lipcani Re-education Correctional Facility for Minors, where the efforts made in this respect regard are to be highlighted... the quantity and quality of prisoners’ 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 stock levels of food and the menus, confirm the credibility of these complaints. The delegation’s findings also confirm that in certain places (Colonies 3 and 4) the food served was repulsive and virtually inedible (for instance, insects and vermin were present). This is hardly surprising, given the general state of the kitchens and their modest equipment. The Moldovan authorities have always claimed financial difficulties in ensuring that prisoners receive adequate food. However, the Committee reiterates that this is a fundamental requirement of life that must be ensured by the State to persons in its care, and that nothing can exonerate it from such responsibility. Failure to meet this obligation is all the more unacceptable as, under legislation, working prisoners in the institutions visited contribute to the cost of feeding themselves and their fellow-prisoners. ... 85.     In the light of the above, the CPT recommends that the Moldovan authorities: ... -   ensure that each prisoner in correctional facility nos. 4 and 15 has his own bed with the necessary bedding (mattress, sheets, blankets) and that all windows are glazed; -   remove the screens from the windows in the cells in unit 1 of correctional facility no. 15 to allow for the proper entry of natural light and fresh air; -   commence the refurbishment of the sanitary equipment in correctional facility nos. 4 and 15 and in the Re-education Correctional Facility for Minors forthwith, in the light of the remarks made above; -   immediately guarantee that inmates in Prison nos. 3, ... 4 and 15, as well as in all other affected prisons, receive adequate food served in accordance with the basic rules of hygiene; -   take all requisite measures to ensure adequate water, electricity and fuel supplies in correctional facility nos. 4 and 15, as well as in all other affected prisons; ...” 14 .     The relevant parts of the report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment concerning his visit to Moldova from 4 to 11 July 2008 (The United Nations Human Rights Council, document A/HRC/10/44/Add.3, 12 February 2009) read as follows: “B. Conditions in places of detention Institutions under the Ministry of Justice 30. Undoubtedly, progress has been achieved in improving conditions of detention. [1] However, some of the institutions visited by the Special Rapporteur were heavily overcrowded. The authorities themselves pointed out that Institution No. 13 in Chişinău was severely overcrowded - on the day of the visit it held 931 persons with the official capacity being 600 (see also appendix). The Special Rapporteur was informed of Government plans to close down this institution. 31. Common problems at all pre- and post-trial prisons are the poor hygienic conditions, restricted access to health care and lack of medication as well as risk of contamination with tuberculosis and other diseases. Whereas the Special Rapporteur notes that the minimum norms regarding nutrition of detainees (Government Decision n. 609 of 29 May 2006) are checked on a daily basis and that, according to the financial plan of the Penitentiary Department, the food budget for 2008 had almost doubled in comparison to 2004 and is set to rise further, he also received consistent allegations regarding the poor quality and quantity of food. ...” 15 .     In its report for 2009 (page 117 – “Conditions of detention”), the Centre for Human Rights in Moldova (“the Human Rights Centre”, which also acts as the Moldovan Ombudsman) found, inter alia , that: “Regarding personal hygiene, clothing and bedding, despite [the fact that] Government decision no. 609 (29 May 2006) concerning minimum daily food requirements and the issuing of items of personal hygiene provides for the issuing of soap to detainees for bathing and other sanitary-hygienic needs, this has remained unfulfilled during 2009.” 16 .     In its report for 2010 (page 142 et seq. – “Conditions of detention”) the Human Rights Centre found, inter alia , that: “... [T]he Prisons Department informed the Ombudsman that meat and fish products are provided [to detainees] whenever possible. At the same time, that authority stated that, owing to the difficult financial situation, during 2010 the detainees in prison no. 17 in Rezina received 75% and 80% of their normal quotas of meat and fish products respectively. In this connection, the Minister of Justice submitted information concerning the expenditure on prisoners’ food in 2010. The cost amounted to MDL   24.05 million, whereas the budgetary need for the same year was, according to the Ministry of Finance’s draft budget, MDL   29.05 million. The daily cost of feeding a detainee in 2010 was MDL   10.24 [approximately EUR   0.60], while the daily budgetary need was MDL 12.35. This statistic was often cited by prison administrations to justify why they were unable to provide detainees with meat and fish ...” 17.     On 24 October 2003 Parliament adopted Decision no.   415-XV approving the National Human Rights Action Plan for 2004-2008. The Plan included a number of objectives to be achieved over a four-year period and was aimed at improving conditions of detention, including reducing overcrowding, improving medical treatment, introducing detainees to employment and encouraging their social reintegration, as well as carrying out training for personnel. Regular reports were to be submitted regarding the implementation of the Action Plan. On 31   December 2003 the Government adopted a decision on the principles of reorganisation of the prison system, together with the 2004-2013 Action Plan for the Reform of the Prison System, both having the aim, inter alia , of improving the conditions of detention in prisons. 18 .     On an unspecified date the Ministry of Justice produced a report entitled “Implementation by the Ministry of Justice of Chapter 14 of the National Human Rights Action Plan for 2004-2008, approved by Parliament Decision no. 415-XV of 24 October 2003”. On 25 November 2005 the Parliamentary Commission for Human Rights also produced a report on implementation of the National Action Plan. Both reports confirmed the insufficient funding of the prison system and the resulting failure to fully implement the Plan in Moldovan prisons, including prison no. 3 in Chişinău. The first of these reports stated, inter alia , that “as long as the aims and actions outlined in [the National Human Rights Action Plan] do not have the necessary financial support ... it will remain only a good intention of the State to protect human rights as described in Parliament Decision no.   415-XV of 24   October 2003 ...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 19.     The applicant complained that he had been detained in inhuman conditions, both in prison no. 3 in Chișinău and in prison no. 15 in Cricova. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Admissibility 1.     The Government’s preliminary objection 20.     The Government argued that the applicant had failed to exhaust available domestic remedies. In particular, under Article 4 § 2 of the Constitution, the Convention is part of the domestic legal system and has priority over other laws. Therefore, the applicant should have lodged civil proceedings with the domestic courts, relying both on the Convention directly and on various provisions of the Civil Code. 21.     The applicant argued that he had no effective remedies in respect of his complaint under Article 3 of the Convention. 22 .     The Court reiterates that it has examined on numerous occasions the issue of domestic remedies in respect of poor conditions of detention in Moldova (see Sarban v. Moldova , no. 3456/05, §§ 57-62, 4 October 2005; 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 ineffective in respect of individuals currently held in detention. In Malai v.   Moldova (no. 7101/06, §§   42-46, 13   November 2008), it found a violation of Article 13 of the Convention on account of the lack of effective domestic remedies in respect of inhuman and degrading conditions of detention, 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. In the present case, the applicant was still in detention at the time of lodging his complaint. The Court finds, therefore, that the application cannot be declared inadmissible for non-exhaustion of domestic remedies and accordingly the Government’s objection must be dismissed. 2.     Other admissibility issues 23.     The Court notes that in the present case the applicant made four complaints regarding the conditions of his detention: (i)   insufficient medical assistance, (ii)   cell overcrowding, (iii)   poor hygiene, and (iv)   the quality and quantity of food. The Court considers that he did not substantiate the first of these complaints. Moreover, the Government submitted specific information confirming that he had received medical assistance on numerous occasions. 24 .     As for cell overcrowding, the Court is aware of the general situation in Moldovan prisons and has found a violation in a number of cases concerning this issue. However, it appears from the Government’s submissions (the applicant having focused on overcrowding in prison no. 3), that in prison no. 15 he initially had 4 sq.m of personal space, which was later increased to 8 and even 10 sq.m (see paragraph 11 above). In the absence of any evidence to the contrary, the Court concludes that the complaint concerning overcrowding in the applicant’s cell in prison no.   15 is unsubstantiated, since the space available to him was above the minimum of 4 sq. m recommended by the CPT. 25.     The Court refers to the principles established in its case-law (see, for instance, I.D. v. Moldova , no. 47203/06, §§ 27-29, 30   November 2010) concerning the calculation of the six-month time-limit for lodging applications concerning conditions of detention. In particular, where conditions of detention in several different places are complained of, the alleged violation may amount to a “continuing situation” if the main characteristics of the periods of detention under examination are essentially the same. Otherwise, each period of detention will be treated separately, and the complaint in respect of each such period must be lodged with the Court within six months from the end date of such detention. 26.     As it follows from paragraph 24 above, there was no cell overcrowding in the applicant’s case while he was detained in prison no.   15.   Therefore, the problem of overcrowding cannot be considered to amount to a continuing situation, and any complaint in that regard concerning detention at prison no.   3 should have been lodged with the Court within six months of the applicant leaving that prison and no longer being subjected to the alleged violation. However, the applicant lodged his complaint ten months after his transfer to prison no. 15 (see paragraphs 1 and 6 above). It follows that this part of the complaint has been lodged out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention. 27.     The Court notes that the complaints concerning poor hygiene and food in prisons no. 3 and 15 is essentially the same, and can be considered to amount to a “continuing situation”. Therefore, this aspect of the conditions of detention in both institutions must be examined as a whole. The Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 28.     The applicant submitted that the conditions of his detention in both prison no. 3 and no. 15 had amounted to inhuman treatment. In particular, the food served had been inedible and he had been denied his normal quota of fish, meat and dairy products. He had been held in poor sanitary conditions, the cell having been infested with vermin. Furthermore, the toilet had been situated only 1.5 metres from the dining table and had given off a foul odour because there had been no products to clean it with. 29.     The Government submitted that in accordance with Government Decision no. 1054 (in force since 1 January 2009) hygiene products such as soap, toothbrushes and toothpaste, toilet paper and washing powder were distributed to all detainees. Bedding was changed at least once a week, after the Prisons Department bought over 20,000 different items of bedding in 2009. Washing machines were at the detainees’ disposal. Food corresponded to sanitary and nutritional norms; the prison doctor in both prison nos. 3 and 15 checked the quality of the food. While certain foods such as meat, fish and dairy products were provided whenever available, after 2006 the situation improved considerably and these products were provided in sufficient quantities. 30.     As regards conditions of detention, the Court reiterates that the State must ensure that a person is detained in conditions which are compatible with respect for 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 (see Kudła v. Poland [GC], no. 30210/96, §§   92-94, ECHR 2000 ‑ XI, and Popov v.   Russia , no.   26853/04, §   208, 13   July 2006). 31.     In the present case, the Court notes that a number of sources, both national and international (see paragraphs 13-16 above) indicate that, at least until 2009, sanitary conditions in most of the prisons visited, including prisons nos. 3 and 15, were substandard. It is also apparent that both the quantity and quality of food served to detainees raised serious concerns. The Court also notes that it has found the conditions of detention, notably in prison no. 3, to have been contrary to Article 3 requirements even in mid-2008, notably concerning the quality of food served there and in prison no. 15 (see Ciorap v. the Republic of Moldova (no. 3) , no. 32896/07, §§ 33-37, 4   December 2012). 32.     The Government argued that significant improvements had been made in 2009, an effort which the Court appreciates. At the same time, this could not have improved the applicant’s situation from the date of his arrest in 2005 until the allegedly significant improvements had been achieved in 2009. 33.     The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 3 of the Convention in the present case. II.     ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 34.     The applicant complained that he did not have an effective domestic remedy in respect of his complaints under Article 3 of the Convention. He relied on Article 13 of the Convention, which 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.” A.     Admissibility 35.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 36.     The Government argued that it was open to the applicant to bring a civil claim for compensation for any alleged violation of Article 3 of the Convention. They relied on the cases of Gristiuc and Drugaliov , as cited in Feraru v. Moldova (no. 55792/08, § 27, 24 January 2012). 37.     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. 38.     In the present case, for the same reasons as those which have led to the dismissal of the Government’s objection concerning exhaustion of domestic remedies (see paragraph 22 above), the Court finds that there has been a violation of Article 13 of the Convention due to the absence of effective remedies in respect of complaints concerning conditions of detention in Moldova. 39.     There has therefore been a breach of Article 13 of the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 40.     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.” A.     Damage 41.     The applicant claimed 20,000 euros (EUR) in compensation for the damage caused to him as a result of the violation of his rights under Articles 3 and 13 of the Convention. 42.     The Government argued that no compensation was due in the absence of a violation of any Convention-protected rights. In any event, the amount claimed was excessive in view of the Court’s case-law. 43.     Having regard to the nature of the violations found above, the Court considers that an award for non-pecuniary damage is justified in this case. Making its assessment on an equitable basis, the Court awards the applicant EUR   5,000. B.     Costs and expenses 44.     The applicant claimed EUR 11,857 for costs. He submitted an itemised list detailing the hours his lawyer worked on the case (at an hourly rate ranging between EUR 30 and EUR 180). 45.     The Government argued that both the number of hours worked on the case and the rates charged by the lawyer were excessive. 46.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads. C.     Default interest 47.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the complaint under Article 3 (concerning poor hygiene as well as quality and quantity of food) and Article 13 admissible, and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article 3 of the Convention;   3.     Holds that there has been a violation of Article 13 of the Convention;   4.     Holds (a)     that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, the following amounts, to be converted into the respondent State’s national currency at the rate applicable at the date of settlement: (i)     EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 15 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago Quesada   Josep Casadevall   Registrar   President   [1] .     The Government indicated that a large number of prisons have undergone or are currently undergoing renovation of their heating, water supply systems, sanitary facilities or roofing (e.g. no. 1 - Taraclia, no. 3 - Leova; no. 5 - Cahul, no. 6 - Soroca; no. 9 - Pruncul; no. 17 - Rezina; no. 18 - Branesti; some of these projects are supported by international or bilateral donors.