CASE OF FERARU v. MOLDOVA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Non-pecuniary damage - award
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Mihai Poalelungi;Nona Tsotsoria
5. The applicant was born in 1974 and lives in Migieşti. 6. The applicant is a tradesman specialised in installing roof drainage systems. In May – June 2008 he accepted money from four different people in exchange for installing drainage systems in their houses. However, he failed to carry out the required work and declared that he no longer had the money, promising to return it later. 7. In the early morning of 29 September 2008 he was arrested by the police and brought to Râşcani Police Station in Chişinău, on the grounds of having committed the administrative offence of insulting a police officer. He was allegedly forced to return the money which he had taken from B. I. for installing a roof drainage system on his house. According to the applicant, he had not managed to finish the work on that installation when B. I. asked for the money to be returned and also involved his relatives who worked at Râşcani Police Station in order to intimidate the applicant and obtain full repayment. 8. On 1 October 2008 B. I. made a complaint to the police, according to which the applicant had defrauded him by accepting money and refusing to return it, while having failed to carry out any work. On 4 October 2008 a criminal investigation against the applicant was initiated. 9. On an unspecified date one of the applicant’s relatives paid 500 euros (EUR) to B. I., who signed a statement to the effect that he no longer had any claims against the applicant. 10. On 6 October 2008 the prosecutor asked the Râşcani District Court to order the applicant’s detention for ten days. The applicant was accused of defrauding B. I. by accepting 8,000 Moldovan lei (approximately EUR 560 at the time) in May 2008 as payment for installing a roof drainage system, but failing to carry out any work. He was also accused of two similar offences, but no details other than the case numbers were given. Details were given at subsequent court hearings. A hearing was scheduled for the same day at the Râşcani District Court. 11. The applicant’s lawyer was not able to read the prosecutor’s request until immediately before the hearing and was not given a copy at that time. He did not see any other documents being submitted to the investigating judge to substantiate the prosecutor’s request and no documents were shown to the defence or discussed by the investigating judge at the hearing. 12. During the hearing of 6 October 2008 the lawyer informed the court of the payment of EUR 500 to B. I. The prosecutor present at the hearing declared that there was no evidence of any repayment of the monies to B. I. The lawyer then asked that B. I. be heard in order to confirm that payment. The court did not take any formal decision in respect of B. I. and the latter was not heard before the court adopted its decision. During the same hearing, the applicant submitted that he had been arrested on 29 September 2008. The prosecutor confirmed that, stating that the applicant had been arrested on an administrative charge and then arrested again as a suspect in the criminal proceedings. The applicant’s lawyer argued that since his client was suspected of having committed a crime, he should have been arrested in accordance with the criminal procedure. The court did not react in any way to this argument, confining its reasoning to the applicant’s detention after 4 October 2008. 13. In his decision of 6 October 2008 the investigating judge of the Râşcani District Court granted the prosecutor’s request and ordered the applicant’s detention pending trial for ten days. The reasons given were that: “the act of which [the applicant] is accused is considered a minor crime, which is a legitimate ground for detention pending trial; the character, degree of harm and circumstances of the crime constitute sufficient grounds for supposing that [the applicant] will interfere with the normal course of the investigation; the materials submitted to the court clearly confirm that there is a reasonable suspicion that [the applicant] committed a minor crime, and there are sufficient grounds to prevent [the applicant] from hindering the establishment of the truth and from absconding from the investigating authority; the materials in the file confirm the reasonable suspicion that [the applicant] might reoffend, as it follows from the information obtained by the investigating authority during the operational phase of the investigation that [the applicant] may have committed other similar offences; ... [the applicant] has no stable income and works periodically, there is no information about his financial status and his state of health is not incompatible with detention; [the applicant] and his lawyer did not submit any evidence in support of their statements; ...” 14. The applicant’s lawyer appealed, complaining of the applicant’s de facto arrest on 29 September 2008 and his detention thereafter, and of the lack of legal assistance available to the applicant until 6 October 2008. He submitted that the lower court had not dealt with that complaint. He also informed the court of the fact that he had only read the prosecutor’s request at the hearing of 6 October 2008 and had not had time to properly prepare for that hearing. Besides the prosecutor’s request, no other document had been submitted to the court or shown to the defence to substantiate the need for the applicant’s detention. Nor had the prosecutor referred to any additional documents or other evidence during the hearing. The applicant had asked the first-instance court to hear a witness, who could have confirmed that the applicant had had a contract with B. I. and that B. I.’s relatives in the police had threatened the applicant if he refused to return the money for the ongoing work, but the court had refused to hear the witness without giving any reasons. Moreover, the judge had relied on grounds which had not been mentioned by the prosecutor, thus showing bias towards the prosecution. The lawyer relied on Article 5 of the Convention and referred to the absence of any evidence to support the prosecutor’s request for the applicant’s detention pending trial, including the absence of any judgment or other evidence concerning the other similar offences allegedly committed by his client. In the lawyer’s opinion, there had been no reason to believe that the applicant would abscond or interfere with the investigation. Relying on Article 3 of the Convention, the lawyer also complained of the inhuman conditions of his client’s detention. 15. On 10 October 2008 the Chişinău Court of Appeal rejected the appeal as unfounded, referring to similar grounds as those referred to by the lower court, including that the applicant had allegedly committed other similar offences “as [could] be seen from the criminal file”. 16. On 13 October 2008 the prosecutor asked for an extension of the applicant’s detention pending trial for thirty days. He referred to three separate occasions on which the applicant had been accused of having accepted money for installing roof drainage systems but had failed to do so, including in respect of B. I. 17. On the same day the investigating judge of the Râşcani District Court granted the request and ordered the applicant’s detention pending trial for thirty days. The court noted that “... a serious crime has been committed for which the law provides a penalty of more than two years’ imprisonment; there has been no compensation for the pecuniary damage caused; there are reasons to believe that [the applicant] could abscond or interfere with the normal and objective course of the investigation; the grounds on which the initial detention was ordered remain valid.” 18. The applicant’s lawyer appealed, relying on the same grounds as in his previous appeal. He added that his client had told the lower court that he owed no debt to B. I., whom he had reimbursed fully. Moreover, the lawyer had read the prosecutor’s request only immediately before the hearing of 13 October 2008. No documents other than the prosecutor’s request had been examined by the court during the hearing or shown to the defence. The lawyer added that the applicant had a stable home life, had two children to support and had not been previously convicted of any offence. He again complained of his client’s inhuman conditions of detention, both at the Râşcani Police Station and at the General Police Department (“the GPD”, see paragraph 22 below), and relied on Article 3 of the Convention in that regard. 19. On 21 October 2008 the Chişinău Court of Appeal rejected the appeal, relying on the same grounds as those referred to by the lower court. 20. On 11 November 2008 the Râşcani District Court ordered the applicant’s release. The court found that “... [the applicant] is accused of having committed a crime for which the law provides punishment [through] alternatives [to imprisonment]; he did not abscond from the investigating authority; he has a permanent residence and two children.” 21. On 8 May 2009 the Râşcani District Court found the applicant guilty of fraud and sentenced him to three years’ imprisonment, suspended for one year. In his submissions to the court the applicant acknowledged having taken money from B. I. in May 2008. After a while, he had manufactured the relevant items but had not been able to install them because of personal family circumstances obliging him to remain home with his children. The court found that he had taken money from three other people in May – July 2008 and had also failed to carry out the work which he had undertaken to do for them. 22. According to the Government, the applicant had been detained for one night at the Râşcani Police Station on 29 September 2008 and had then been transferred to the General Police Department (Comisariatul General de Poliţie or “the GPD”), where he had been detained until 11 November 2008. 23. The applicant described his conditions of detention at the Râşcani Police Station as follows: he had been held in a cell without a bed or any other furniture; there had been no ventilation, toilet or running water in the cell; he had not been given any food and had had to beg for it from other detainees; the cell had been overcrowded and many detainees had smoked, exposing the applicant to passive smoking; and the cell had been damp. 24. According to the applicant, at the GPD he had been placed together with seven other people in a cell measuring 12 square metres. The cell had been dirty and infested with parasitic insects and rats. There had been no furniture in the cell, and the detainees had slept directly on the floor, in their own clothes. The cell had been damp and very cold. A low-intensity lamp, covered by a metal sheet, had been switched on twenty-four hours a day and there had not been a window in the cell. The toilet had not been separated from the rest of the cell, offering no privacy. Due to the large number of people using it, the toilet had been occupied most of the time and had smelt bad. The applicant had not been given any personal hygiene items, clean clothes or bed linen. He had had to continually wear the clothes in which he had been arrested. The applicant had received little food, which had been of a very bad quality (a cup of warm water in the morning and evening and boiled vegetables with warm water for lunch). Even though he had had a stomach ulcer and high intracranial blood pressure, he had not received any medical assistance. He had been detained in such conditions for twenty-four hours a day, without any right to take exercise or to take part in recreational activities. 25. 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), Becciev v. Moldova (no. 9190/03, 4 October 2005), and other similar cases in respect of Moldova. 26. The Government submitted a list of laws, regulations, Ministry orders and other acts or bills yet to be enacted which are aimed at improving various aspects of prison conditions and the medical treatment of detainees. 27. 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. 28. The relevant findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) read as follows: “A. Institutions of the Ministry of Internal Affairs In so far as the conditions of detention in the police establishments are concerned, it appears that this is the field in which the least progress has been achieved. It is not necessary to enumerate here in detail all the shortcomings observed by the delegation, which are more or less the same as those observed during past visits (and of which the Ministry of Internal Affairs is perfectly aware). ... Numerous persons are still detained overnight in police establishments, in cells which should not be used to detain persons for more than a few hours. It is high time to remedy these problems, in particular by placing accused persons under the supervision of institutions of the Ministry of Justice and building new prisons corresponding to CPT standards and to the norms laid down by the Moldovan legislation. [...] 9. Persons placed on remand should as a rule be detained in prisons under the authority of the Ministry of Justice. However, such persons may continue to be held in police temporary detention facilities (izolatoare de detenţie preventivă, abbreviated “IDP”) under the authority of the Ministry of Internal Affairs, if this is required for the purposes of the criminal investigation or if the transfer to a pre-trial establishment cannot be effected promptly. It is also possible for remand prisoners to be transferred back from prison to an IDP when necessary for the purposes of the investigation or the court proceedings, for periods of up to 10 days at a time. At the time of the 2007 visit, the delegation noted that the average length of stay in IDPs of persons remanded in custody had decreased. For example, at the IDP of the General Police Directorate in Chişinău, the majority of persons who had been remanded in custody were being transferred to Prison No. 13 within a week. This is a welcome development. Nevertheless, the delegation also gathered evidence of persons remanded in custody spending extended periods of time in IDPs (e.g. uninterrupted stays of up to 70 days at Anenii Noi; up to 40 days at the Operational Services Department in Chişinău). As regards the practice of repeated transfers of remand prisoners between prisons and IDPs, it continued unabated. As stressed by the CPT in the past, IDPs will never be capable of providing conditions of detention suited for holding persons remanded in custody. The Moldovan authorities are well aware of the limitations of the existing IDPs and, following a decision to transfer the responsibility for these facilities to the Ministry of Justice by the beginning of 2008, have been exploring the possibility of constructing eight new remand prisons in different regions of the country. During the 2007 visit, the delegation was informed that this project was still at the conception phase, due to the lack of budgetary resources. The Ministry of Justice was approaching various donors, banks and the public sector in the hope of raising the necessary funding (estimated at approximately 3 mln USD per remand prison). The CPT calls upon the Moldovan authorities to give the highest priority to the implementation of the decision to transfer the responsibility for persons remanded in custody to the Ministry of Justice. The objective should be to end completely the practice of holding remand prisoners in police establishments. The return of remand prisoners to police facilities, for whatever purpose, should be sought and authorised only when there is absolutely no other alternative, and for the shortest time possible. [...] 11. In previous visit reports, the CPT recommended that administrative arrest be no longer exploited by operational police officers to detain and question persons suspected of criminal offences, without their being offered the safeguards inherent in the criminal procedure. Nevertheless, during the 2007 visit, the delegation came across a number of persons who were officially being held in IDPs for having committed administrative offences (e.g. at the Operational Services Department and the General Police Directorate in Chişinău), but were in fact being questioned as criminal suspects, apparently without being allowed to contact a lawyer. Resolute steps should be taken to stamp out this abusive practice, which amounts to circumventing the legal provisions concerning the length of police custody in respect of criminal suspects. The CPT reiterates its previous recommendation that firm instructions be issued to law enforcement officials that persons suspected of criminal offences are to be held and questioned strictly in accordance with the provisions of the Code of Criminal Procedure. The Committee also calls upon the Moldovan authorities to ensure that compliance with this requirement is closely supervised. [...] 4. Conditions of detention a. temporary detention facilities (IDPs) 34. Following the CPT’s visit in 2004, the Moldovan authorities launched a programme for improving material conditions in IDPs, with a view to implementing the Committee’s recommendations. However, it became clear from the discussions held with Ministry of Internal Affairs officials at the outset of the 2007 visit that the programme had not progressed as rapidly as envisaged, due to the lack of funding. At one of the establishments visited, the IDP in Străşeni, the refurbishment had been suspended, and it was unclear when the works would be finished. That said, the delegation was pleased to note that the cells’ envisaged occupancy levels once the refurbishment had been completed would be in accordance with the CPT’s standards (i.e. cells measuring some 12 m² would hold two persons each), and that the in-cell toilets would be partitioned off. 35. Despite the above-mentioned programme, conditions of detention in the IDPs visited remained, in general, very poor. The cells had either no windows (e.g. at the IDP of the Operational Services Department in Chişinău, some of the cells at Călăraşi IDP, one cell at Anenii Noi IDP) or their windows were covered by shutters which substantially limited access to natural light. As for artificial lighting, it was, as a rule, dim. Particular mention should be made of one cell at Anenii Noi, in which there was no electric bulb; staff had reportedly told the detainee that he should provide a new bulb himself. Further, the cells were often stuffy, despite the presence of a ventilation system (which was rarely turned on because of the noise it made). Detainees slept on wooden platforms, which took up most of the floor space; no steps had been taken in respect of providing mattresses and blankets (the presence of an occasional blanket was attributable to detainees’ families). The only exception was the IDP in Călăraşi, where most of the cells were fitted with bunk beds with mattresses. At the time of the visit, the number of persons held at the IDPs was well below their official capacity. Nevertheless, overcrowding was observed in some of the cells (e.g. three persons in a cell measuring 7 m² at Leova). Further, the delegation came across several cells which were very small (4 m² at Leova; 5.5 m² at Anenii Noi). Cells of such a size are only suitable for short periods of detention. 36. The arrangements in respect of food varied from one establishment to another: at the two IDPs in Chişinău, three meals a day were being provided, whereas in Leova, the number of daily meals was two, and at Călăraşi and Anenii Noi, only one. The delegation received numerous complaints about the insufficient quantity and poor quality of the food. It was clear that most detainees relied primarily on food parcels delivered by their families. 37. On a more positive note, all the IDPs visited possessed exercise yards. Detainees were in principle entitled to one hour of outdoor exercise a day. However, at the IDPs in Călăraşi and the General Police Directorate in Chişinău, the delegation heard widespread allegations that the outdoor exercise periods were limited to 5 to 15 minutes, and did not take place every day. Apart from outdoor exercise, there were no activities (e.g. access to books, newspapers, radio, board games). 38. To sum up, the conditions prevailing at the IDPs visited continue to render them unsuitable for accommodating persons deprived of their liberty for prolonged periods of time (which continues to be case of both persons remanded in custody and administrative detainees). Reference has already been made in paragraph 9 to the envisaged transfer of responsibility for IDPs to the Ministry of Justice and the setting up new remand prisons, which should correspond to the requirements of Moldovan legislation and the CPT’s standards. In the meantime, the Moldovan authorities should redouble their efforts to find the financial means necessary for providing for the fundamental needs and preserving the dignity of detained persons. In particular, urgent steps should be taken to ensure that: - all detained persons are provided with a clean mattress and blankets; - detained persons receive food of sufficient quantity and improved quality; - in-cell lighting (including access to natural light) and ventilation are adequate; - there is a minimum of 4 m² per person in multi-occupancy cells; - detained persons have ready access to communal toilet facilities, and in-cell toilets are equipped with a partition; - detained persons are ensured access to washing facilities and are supplied with essential personal hygiene products; - all detained persons have access to outdoor exercise of at least one hour per day. The CPT also recommends that steps be taken to provide some form of activity in addition to outdoor exercise to persons held in excess of a few days at IDPs.” “10. During the 2009 visit, the delegation observed that the practice of holding remand prisoners in police temporary detention facilities (izolatoare de detenţie preventivă, abbreviated “IDP”) continued unabated. In the report on the 2007 visit, the CPT called upon the Moldovan authorities to give the highest priority to the implementation of the decision to transfer the responsibility for persons remanded in custody to the Ministry of Justice. In response, the Ministry of Internal Affairs indicated that it was in favour of a temporary transfer of responsibility for IDPs to the Ministry of Justice, pending the building of pre-trial establishments under the latter Ministry’s authority. However, at the end of the 2009 visit, the Minister of Justice indicated that the responsibility for the IDPs could not be taken over by his Ministry because conditions of detention in these facilities were substandard. The CPT shares the view that IDPs do not offer suitable conditions for holding persons remanded in custody. The Committee would nevertheless like to stress that, in the interests of the prevention of ill-treatment, the sooner a criminal suspect passes into the hands of a custodial authority which is functionally and institutionally separate from the police, the better. The delegation’s findings from the 2009 visit support that; most cases of alleged police ill-treatment in the context of the April events had emerged only after the persons concerned had been transferred to an establishment under the Ministry of Justice or released. The CPT recommends that, pending the building of new pre-trial establishments, the Moldovan authorities take steps to transfer the responsibility for IDPs to the Ministry of Justice. Further, the Committee would like to receive up-to-date information on progress made to build new pre-trial establishments under the Ministry of Justice. 11. The legal framework for deprivation of liberty of administrative detainees is provided by a new Contravention Code, which entered into force after the April events, on 31 May 2009, and replaced the 1985 Code of Administrative Offences. According to the new legal provisions, the persons concerned may be sentenced to up to 15 days of deprivation of liberty, a period which may be extended to 30 days if they have committed more than one offence. In the past, the CPT repeatedly recommended that detention for administrative offences no longer be exploited by operational police officers in order to detain and question persons suspected of criminal offences, without their being offered the safeguards inherent in the criminal procedure. The delegation’s findings from the 2009 visit suggest that such abusive practices were widespread in the context of the April events. The CPT is therefore pleased to note that the new Contravention Code restricts the powers of the police to hold persons, on their own authority, for more than three hours. However, the delegation heard some recent allegations from detained persons that proceedings under the Contravention Code (for insulting law enforcement officials, for instance) had been initiated against them after they had refused to confess to a criminal offence, despite their correct behaviour vis-à-vis the police, and that their objections had little weight before prosecutors and judges. The lack of access to a lawyer in practice, at this stage of the procedure, had exacerbated this situation. The CPT recommends that prosecutors and judges be encouraged to be particularly vigilant as to the possible exploitation by the police of the provisions of the Contravention Code to circumvent the length of police custody in respect of criminal suspects. Reference is also made to paragraph 34 as regards access to a lawyer. According to the Enforcement Code, persons under administrative arrest by virtue of the Contravention Code should be detained, as a minimum, in conditions provided for sentenced prisoners placed under an “initial” regime in penitentiary establishments. That said, it appeared during the 2009 visit that a number of persons under arrest continued to serve their administrative sentences in police establishments, which certainly do not offer such conditions. The CPT recommends that the Moldovan authorities take all the necessary measures to ensure that persons under administrative arrest serve their sentences in penitentiary establishments. [...] 36. The CPT notes with satisfaction that the cells of the IDP of the General Police Directorate in Chişinău had been fitted with beds and that some repair works had been carried out a few months before the visit. However, the conditions prevailing in this facility were still not suitable for the prolonged periods for which remand prisoners and administrative detainees were being held in it: high official occupancy levels in the cells (e.g. 4 places in a 10 m² cell), poor in-cell lighting, access to outdoor exercise limited to some 15 minutes. The CPT recommends that these shortcomings be remedied (see also the recommendations made in paragraphs 10 and 11).” 29. The relevant findings of the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (Human Rights Council, 10th session, Report on the special rapporteur’s mission to Moldova, document A/HRC/10/44/Add.3, 12 February 2009) read as follows: “Police custody 38. Despite international and national minimum standards, conditions in some police custody facilities are a source of major concern. Whereas some police stations were suitable at maximum for short-term police custody, in some cases, notably in Bălţi, Comrat, and at Chişinău police headquarters, the conditions amounted to inhuman treatment. In those police stations, persons were held in small, badly ventilated cells with little or no daylight sometimes for several weeks or even months. However, according to official sources, some of the police custody facilities had been closed in order to improve conditions (Criuleni, Ialoveni, Straseni, Cantemir, Glodeni, Stefan-Vodă, Edinet, Donduseni, Ciadâr-Lunga). 39. Notwithstanding some measures taken by the Government, many persons in police custody complained about the quality and quantity of the food, although some said that it had slightly improved. Detainees in some police stations (e.g. Comrat) indicated that they received food only once per day. Lack of access to medical care was another major concern. Some of the cells were not equipped with mattresses and persons in police custody were not given blankets to sleep on. 40. The Special Rapporteur received consistent allegations that the minimum time required by national law for exercise (one hour per day) is not respected in many cases. At several police stations, detainees indicated that they are allowed to walk only for about 15 minutes per day. This is exacerbated by the fact that some spend long periods of up to several months in police custody. The one shower per week requirement is not always respected. Moreover, the toilet in the cells consists normally of a bucket or an open toilet without flush, at best separated by one meter high walls. Since often more than one person is detained in a cell, these sanitary facilities deprive the detainees of their privacy. Furthermore, this situation generates not only an unpleasant smell, but also a critical hygienic situation.” In their reply to the above-quoted report, the Moldovan authorities acknowledged the seriousness of the problem of ensuring appropriate conditions of detention in Moldova and stated that most of the necessary legislative measures had already been taken. The lack of financing for implementing the measures decided upon was the single most serious impediment to solving the problem. 30. The relevant findings of the United Nations Committee Against Torture, adopted at its 43rd session on 2-20 November 2009 (document CAT/C/MDA/CO/2) read as follows: “Conditions of detention 18. The Committee welcomes the amendment in December 2008 of the Criminal Code, which reduced minimum and maximum penalties, prompted a general review of penalties and reoffending, and provided for alternatives to detention, thus contributing to the reduction in the total number of prison population in the State party. The Committee also welcomes reconstruction, repairs and maintenance work carried out in a number of penitentiary institutions starting from 2007. Despite the State party’s efforts to improve the conditions of detention, the Committee remains concerned at overcrowding in certain facilities and that conditions remain harsh, with insufficient ventilation and lighting, poor sanitation and hygiene facilities and inadequate access to healthcare. The Committee is concerned about reports about inter-prisoner violence, including sexual violence and intimidation, in places of detention. (art. 10) The State party should: (a) Take the necessary measures to alleviate the overcrowding of penitentiary institutions, inter alia, through the application of alternative measures to imprisonment and through initiating at its own initiative a review of sentences with a view of bringing them in compliance with the December 2008 amendments of the Criminal Code. The State party should continue making available the necessary material, human and budgetary resources to ensure that the conditions of detention in the country are in conformity with minimum international standards; ... ”