CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 10 mai 2007

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4B8D41EE { font-family:Arial; font-size:10pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   294 10.5.2007   Press release issued by the Registrar   CHAMBER JUDGMENT MODÂRCĂ v. MOLDOVA   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Modârcă v. Moldova (application no. 14437/05).   The Court held unanimously that there had been: a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights concerning the conditions of the applicant’s detention; a violation of Article 5 § 1 (right to liberty and security) of the Convention in that the applicant’s detention after 24 October 2004 had no legal basis; a violation of Article 5 § 3 (right to release pending trial) given the insufficient grounds for the prolongation of the applicant’s detention; and, a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) given the interference with the applicant’s right to communicate with his lawyer in private.   Under Article 41 (just satisfaction), the Court awarded the applicant 7,000   euros (EUR) in respect of non-pecuniary damage and EUR 1,800 for costs and expenses. (The judgment is available only in English.)   1.     Principal facts   The applicant, Vladimir Modârcă, is a Moldovan national who was born in 1949 and lives in Chişinău. The applicant, who was Head of the Architecture and Planning Department of Chişinău Municipal Council, suffers, among other things, from osteoporosis.   In September 2004 he was subject to a criminal investigation for abuse of power in connection with the privatisation of a plot of land. He was taken into custody and, between 24 September 2004 and 23 February 2005, was held in the remand centre of the Centre for Fighting Economic Crime and Corruption (CFECC).   On 27 September 2004 Buiucani District Court issued an order for his detention pending trial for 30 days on the grounds that he was suspected of committing a serious offence, that he was a danger to society, liable to re-offend and to destroy evidence, abscond from justice, obstruct the normal progress of the criminal investigation and influence witnesses.   In his appeal against his detention pending trial, the applicant submitted that he was ill, that no evidence had been submitted to the court about the danger of his absconding or influencing witnesses, that he had a family and permanent residence in Chişinău, a job and no previous convictions. His appeal was rejected, the court giving similar reasons for his continued detention.   On 8 October 2004 the prosecution brought a new criminal investigation against the applicant for abuse of power in connection with the granting of a construction permit to a private company in breach of a municipal decision.   The applicant’s further appeals against detention was rejected on similar grounds until 15 November 2005, when a court placed him under house arrest.   The applicant’s lawyer asked for permission to hold confidential meetings with his client during his detention and was offered a room where they were separated by a glass partition, with no space for exchanging documents, across which they claimed they had to shout to hear each other. Despite requests to be given access to a room allowing confidential meetings, and the fact that that request was eventually granted on 2 November 2004 by Centru District Court, no such room was ever provided since the same court essentially reversed its decision on 3 December 2004. The applicant also went on hunger strike in protest against the situation.   On 23 February 2005 the applicant was transferred to Remand Centre No. 3 of the Ministry of Justice in Chişinău, where he was detained until 15 November 2005. He claimed that he shared his 10m2 cell with three other detainees and, since more than half the space was filled with furniture and a toilet, each detainee was left with only 1.19m2. The cell had very limited access to daylight since the window was covered with three layers of metal netting. It was not properly heated or ventilated. He and other detainees had to bring their own clothing and bed linen and to repair and furnish the cell. Moreover, the State allocated approximately EUR 0.28 per day for purchasing food for each detainee (representing 35-40% of the sum required for food, as estimated by the authorities), and the food was inedible. Water and electricity were only provided on a schedule and were unavailable for certain periods, including during the night. Detainees had to refrain from using the toilet during such periods in order to limit the smell. On bath day there was virtually no running water in the cell throughout the day. The table was placed near the toilet, which smelt foul and the area for daily walks was placed below the opening of the ventilation system in the part of the remand centre where detainees with tuberculosis were treated, creating a real danger of infection.   According to the Government, the conditions of the applicant’s detention were appropriate, the cell hygienic and properly furnished, ventilated and heated and the applicant received regular visits from prison doctors.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 20 April 2005.   Judgment was given by a Chamber of seven judges, composed as follows: Nicolas Bratza (British), President , Josep Casadevall (Andorran), Giovanni Bonello (Maltese), Kristaq Traja (Albanian), Stanislav Pavlovschi (Moldovan), Lech Garlicki (Polish), Ljiljana Mijović (citizen of Bosnia and Herzegovina), judges , and also Lawrence Early , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicant alleged, in particular: that he had been held in inhuman and degrading conditions and deprived of medical assistance; that he had been unlawfully detained; that the courts had not given relevant and sufficient reasons for his detention; that he had had no access to the relevant parts of his criminal file to challenge his pre-trial detention; and, that he had been prevented from holding confidential meetings with his lawyer. He relied, in particular on Articles 3 and 5 of the Convention.   Decision of the Court   Article 3   The Court recalled that the Council of Europe’s Committee for the Prevention of Torture (CPT) sets 4 m² per prisoner as an appropriate and desirable guideline for a detention cell. Yet, it was not disputed that the applicant was detained with three other people in a cell measuring 10m2 (2.5 m2 per detainee) or that half of that space was occupied by the cell furniture, leaving each detainee with 1.19m2 of free space. In addition, the applicant had to spend 23 hours a day in those cramped conditions and the only hour allowed for daily walks appeared to have exposed him to the risk of infection with tuberculosis.   The Government had not disputed: the presence of three layers of metal netting on the cell window, that electricity and water supplies had been discontinued for certain periods, that the applicant had not been provided with bed linen or prison clothes and had to invest in the repair and furnishing of the cell, that the dining table was close to the toilet, and that the daily expenses for food had been limited to EUR 0.28 per day for each detainee. The Court further noted that the CPT had reported that the food was “repulsive and virtually inedible”, following a visit to the prison in September 2004.   The Court concluded that the cumulative effect of the conditions of the applicant’s detention and the time he was forced to endure those conditions (almost nine months) amounted to a violation of Article 3.         Article 5 § 1   The Court found that the applicant’s detention pending trial after 24 October 2004, when the last court order for his detention expired, was not based on any legal provision, in violation of Article 5 § 1.   Article 5 § 3   The Court assumed the existence of a reasonable suspicion that the applicant had committed a crime, given the lack of sufficient evidence to the contrary. However, it noted that the domestic courts limited themselves to paraphrasing the reasons for detention provided for in the Code of Criminal Procedure, without explaining how they applied in the applicant’s case. The reasons given for his detention were therefore not relevant or sufficient, in violation of Article 5 § 3.   Article 5 § 4   The Court recalled that the problem of alleged lack of confidentiality of lawyer-client communications in the CFECC detention centre had been a matter of serious concern for the entire community of lawyers in Moldova for a long time and that it had even led to a strike by the Moldovan Bar Association. The Bar’s requests to verify the presence of interception devices in the glass partition had been rejected by the CFECC administration, which appeared to have contributed to the lawyers’ suspicion. Such concern and protest by the Bar Association would, in the Court’s view, have been sufficient to raise a doubt about confidentiality in the mind of an objective observer. The applicant’s reference to indirect proof of the fact that his discussions with his lawyer had been overheard was far from proving that surveillance was carried out in the CFECC meeting room. However, against the background of the general concern of the Bar Association, such speculation might have been enough to increase the concerns of the objective observer. Accordingly, the Court concluded that the applicant and his lawyer could reasonably have had grounds to believe that their conversations in the CFECC lawyer-client meeting room were not confidential.   Moreover, the Court noted the lack of any aperture in the glass partition to allow the exchange of documents, which rendered the lawyers’ task even more difficult. The Court was therefore persuaded that the existence of the glass partition prejudiced the rights of the defence.   The Court further noted that there was nothing in the file to suggest that the applicant posed a security risk. Furthermore, in exceptional circumstances, where supervision of lawyer-client meetings was justified, visual supervision of those meetings would be sufficient.   The Court concluded that the impossibility for the applicant to discuss with his lawyers issues directly relevant to his defence and to his appeal against detention, without being separated by a glass partition, affected his right to defence, in violation of Article 5 § 4   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.