CEDH · CASELAW;COMMUNICATEDCASES;ENG — 20 mars 2013

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He is represented before the Court by Mr   R. Zadoinov, a lawyer practising in Chisinau. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The applicant’s arrest and detention 3.     On 1 October 2012 the applicant was diagnosed with thoracic trauma with two broken ribs and a dislocated arm after he fell while working. On 23   October 2012 he was diagnosed with post-traumatic pneumonia. Repeated medical examinations recommended him bed regime, a tight bandage of his rib cage and antibiotic treatment for his pneumonia, preferably in the hospital or, if at home, under strict medical surveillance. 4.     On 28 November 2012 the applicant was arrested by the police at his home and charged with child trafficking. He was accused of recruiting and travelling with two minor brothers, one aged 14 and the other aged 17, to Ukraine in 2010, where the boys did agricultural work for two months, and also of attempting to cross the border to Ukraine in 2012 with two other minors, one aged 16 and another aged 17, for the same purpose; on 14   August 2012 they were stopped by the Ukrainian border service. 5.     On 30 November 2012 the prosecutor applied to the Centru District Court for a warrant of the applicant’s detention in custody. The reasons relied upon by the prosecutor was that the applicant could abscond from prosecution, interfere with the criminal investigation and re-offend. The prosecutor did not provide any materials in support of his request to remand the applicant. 6.     The same day the Centru District Court issued an arrest warrant for thirty days. In court the applicant argued that the allegations presented by the prosecutor were not supported by any facts or materials, that no materials whatsoever were presented by the prosecutor and that his health condition required medical assistance in hospital. The applicant proposed to be released on bail. The court heard a doctor who confirmed that the applicant’s health condition required continued hospitalisation but the court found that such care could be provided in home conditions as well. The court cited the provisions of the Criminal Procedure Code which entitled the court to remand a person under the risk of absconding and of re-offending. The court concluded that the applicant presented such risks because he was charged with an exceptionally serious crime. 7.     The applicant appealed and argued, inter alia, that the order of detention was unlawful under domestic law because it lacked reasoning referring to the specific case, because the court relied only on suppositions and ignored the proposed non-custodial alternative. The applicant relied on the provisions of Article 308 of the Criminal Procedure Code, arguing that, contrary to them, the court refused to provide his representative with any materials of the file other than the prosecutor’s request and did not examine such materials in general. He also argued that his health condition at his age required medical assistance which he had not received in custody. 8.     On 6 December 2012 the Chișinău Court of Appeal dismissed the applicant’s appeal, relying on the same reasons as the lower court. The court did not reply to any contentions made by the applicant in his appeal. 9.     On 26 December 2012 the Centru District Court extended the applicant’s detention by thirty days for the same reasons as it had done earlier. In the court hearing the applicant’s representative presented copies of the applicant’s medical records and two medical reports, dated 1   October 2012 and 14 December 2012, confirming the diagnosis “Fracture of rib   IV ‑ V. Post-traumatic bronchopneumonia on the right side, sub-febrile condition, chest pain after thoracic trauma. Bilateral TB lung scars.” The court dismissed the applicant’s claims about his health condition as unsubstantiated and referred to the medical reports presented by the applicant as “some copies of some documents which are not relevant”, noting that Prison no. 13 and the Department of Penitentiary Institutions, in general, had special divisions for medical care which could assist the applicant if necessary. 10.     The applicant appealed and argued, inter alia, that the decision was unlawful and in breach of Article 5 § 1 of the Convention because it did not explain how the cited legal provisions applied to the applicant’s case and did not state any reasons for rejecting the applicant’s request to be released on bail. He also claimed that the court had refused to re-hear his doctor and to present or examine any materials other than the prosecutor’s request, contrary to the provisions of the Criminal Procedure Code. He also stated that he had not received medical assistance since his arrest. 11.     On 11 January 2013 the Chișinău Court of Appeal upheld the decision of the Centru District Court of 26 December 2012, without answering the issues raised by the applicant in his appeal. 12.     On 22 January 2013 the prosecutor applied for an extension of the applicant’s detention citing identical reasons as he has done earlier. However on 24 January 2013 the Centru District Court rejected his request and released the applicant under judicial control. The court found that there was no evidence of any risk that the applicant may interfere with the course of the investigation or may re-offend and that the severity of the sanction alone could not justify for his prolonged detention. This decision does not appear to have been appealed. 2.     Medical assistance to the applicant 13.     From 28 November 2012 the applicant was detained in the Detention unit of the General Police Inspectorate. The applicant was transferred to Prison no. 13 at an unspecified date. According to the applicant, he was not visited by a doctor, although upon his arrest he informed the authorities about his medical condition. 14.     On 22 December 2012 the applicant’s lawyer complained to the prosecutor about the applicant’s detention conditions in Prison no. 13 and in particular about the lack of medical assistance for his broken ribs and acute pneumonia. It is unclear if he obtained a reply. B.     Relevant domestic law 15.     Article 177 (1 1 ) of the Criminal Procedure Code, as amended on 27   October 2012, obliges the court to write in its order of detention the specific information which determined the adoption of such decision, the arguments presented by the accused, his representative, and to provide reasons for accepting or rejecting them. 16.     Articles 307 and 308 of the Criminal Procedure Code, as amended on 27   October 2012, oblige the prosecutor to submit materials of the file confirming the reasons on which his request for detention or for extension of detention relies. Both the request and the materials attached to it shall be presented to the representative of the accused. 17.     According to Article 312 of the Criminal Procedure Code, if the materials confirming the lawfulness of detention or of its extension are not presented in court, the appellate court shall annul the imposed preventive measure or its extension and shall release the arrested person. 18.     The relevant provisions of Law no. 1545 (1998) on compensation for damage caused by the illegal acts of the criminal investigation organs, prosecution and courts have been set out in this Court’s judgment in Sarban v.   Moldova , no. 3456/05, § 54, 4 October 2005. In the case of Belicevecen v.   the Ministry of Finance (no. 2ra-1171/07, 4 July 2007) the Supreme Court of Justice found that a person could claim damages on the basis of Law no.   1545 (1998) only if he or she had been fully acquitted of all the charges against him or her.   COMPLAINTS 19.     The applicant complains under Article 3 of the Convention that he was held in inhuman conditions of detention, notably as a result of the failure to provide him with the medical treatment required by his condition. 20.     The applicant complains under Article 5 § 1 of the Convention about the nullity of the detention order, adopted following a procedure unlawful under domestic law, in particular under Article 308 and 312 of the Criminal Procedure Code. 21.     He complains under Article 5 § 3 of the Convention that the courts’ decisions were contrary to domestic law because they did not give relevant and sufficient reasons when ordering and extending his detention or when dismissing his habeas corpus requests. 22.     He complains under Article 5 § 4 of the Convention about the unfairness of the proceedings challenging the lawfulness of his detention and, in particular, about the courts’ refusal to present him and to examine any materials of the criminal file and the appellate court’s refusal to re-hear his doctor. 23.     He also complains under Article 5 § 5 of the Convention about not receiving any compensation for his unlawful deprivation of liberty. QUESTIONS TO THE PARTIES 1.     Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention? In particular, was the applicant provided with the requisite medical assistance while in detention?   2.     Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention (see Mooren v. Germany ([GC], no. 11364/03, §§ 73-75, 9   July 2009)?   3.     Has there been a violation of Article 5 § 4 of the Convention? In particular, did the defence have sufficient access to the materials of the criminal file and to other materials needed to challenge his detention pending trial? (see, Ţurcan and Ţurcan v. Moldova , no. 39835/05, §§ 61-64 and 67-70, 23   October 2007)?   4.     Did the applicant have an enforceable right to compensation for his detention in alleged contravention of Article 5 §§ 1 and 4, as required by Article   5 § 5 of the Convention?