CASE OF GAVRILOVICI v. MOLDOVA
Violation of Art. 3;Violation of Art. 10;Non-pecuniary damage - award
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
5. The applicant was born in 1954 and lives in Palanca. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant's wife and son have been suffering from chronic renal failure (a gradual and progressive loss of the ability of the kidneys to excrete waste, concentrate urine, and conserve electrolytes) since 1998 and 2002 respectively. Consequently they need haemodialysis (a medical procedure that uses a machine to filter waste products from the bloodstream and to restore the blood's normal constituents). They are both disabled on account of their disease (first degree disability, 100% unfit for work). 8. While they live in Palanca village in Ştefan-Vodă county, they have to travel to Chişinău to receive their haemodialysis treatment. Initially, their transportation costs were covered by the regional hospital. However, starting from early 2004, the hospital no longer covered these expenses. In order to continue to benefit from financial help, the applicant's wife and son had to apply to the regional council, which could include the relevant expenses in the regional budget. The hospital informed the regional council about the situation. It also requested a confirmation that the applicant's wife and son actually lived in Palanca. Such a confirmation from the competent State authority was provided on 12 May 2004. 9. On 15 July 2004 the regional council discussed amendments to the regional budget in order to include additional expenses to cover transportation costs for five persons requiring haemodialysis in the county. All those in need of such support were granted it, except for the applicant's wife and son. The reason for the refusal was certain information about the fact that they lived in Chişinău and not in Palanca and therefore did not need transportation to obtain haemodialysis treatment. The decision regarding the applicant's wife and son was postponed. 10. On 5 August 2004 the regional council did not include on its agenda the issue of financial aid to the applicant's wife and son. 11. On 4 November 2004 the regional council met again, and a declaration from the applicant's wife was distributed to all the councillors. The issue concerning financial aid to the applicant's wife and son was put on the agenda. When it was examined, several councillors spoke against introducing the amendments. The county President I.M. stated that he had only seen the applicant twice (implying that the latter did not live in Palanca) and that he was against misappropriation of public funds. Some councillors spoke of the applicant's wife and son living at specific addresses in Chişinău and not needing financial support. Others mentioned the applicant's complaints to various authorities, including courts, against I. M., and the need to protect him from unwarranted attacks. 12. Then the applicant took the floor. According to the minutes of the meeting, he stated: “... what is most insulting is that my son was indeed a student until 2002, when his health worsened and he had to abandon his studies. My wife asked for help in 2004, but that was refused. They told her that she was good to go cultivate the land. My boy is not [in Chişinău]. I do not take back my words that [I. M.] is a fascist...”. 13. According to the applicant, he did not insult anyone during the meeting and did not use the word fascist. 14. After the applicant's statement, he was invited to leave the room and he eventually did so. 15. I. M., the president of Ştefan-Vodă county, used to be the head of the regional police station in the same county. In April 2001 he initiated criminal proceedings against the applicant for failure to pay taxes, following which the applicant was convicted on 12 December 2001. At the meeting on 4 November 2004 one councillor noted that the applicant had made 37 complaints against I.M. to various authorities, including courts. 16. On 27 December 2004 I. M. asked the regional police station to initiate proceedings against the applicant for insulting members of the regional council “during a meeting on 3 December 2004”. He lodged an identical request with the prosecutor's office. 17. The applicant unsuccessfully asked the police to discontinue the proceedings, in the absence of a proper written or audio record of the statements made during the meeting on 4 November 2004. According to the applicant, at the beginning of the meeting it was declared that an audio recording was being made. The applicant asked for a copy of the audio record of the meeting, which was refused. He later initiated court proceedings in order to obtain that record, but the courts rejected his claims. 18. On 26 January 2005 a police officer charged the applicant with having insulted I. M. on 4 November 2004. The case file was sent to the local court, together with the minutes of the meeting on 4 November 2004 and statements by three witnesses. One of the witnesses stated that the applicant had called I. M. a fascist for leaving his family without any help, while another said that the applicant had used a number of insulting words, without specifying which. The third (V. B.) explained that the applicant had not insulted anybody and even if some of his words could be considered vulgar, nobody was affected. 19. Again on 26 January 2005 the applicant was brought before the court. According to the applicant, he asked for witnesses to be heard in order to confirm that he had not insulted anyone. Without reacting to his request, and after a five-minute hearing, the judge convicted and sentenced him to five days' detention. The court found that the applicant had called I.M. a “fascist” and “other insulting words”. The applicant was immediately placed in detention and served all five days. 20. On the same day the applicant appealed, referring to the absence of an audio record of the meeting and the statement by one of the three witnesses regarding the absence of any insulting meaning in his words during the meeting. 21. The Bender Court of Appeal scheduled the hearing of the applicant's appeal for 16 February 2005. On the morning of that day he registered a request with that court's registry to postpone the hearing due to the fact that he already had another hearing scheduled before the Supreme Court of Justice on the same day. The court held the hearing on 16 February 2005 and did not refer to the applicant's request. It rejected the applicant's appeal as unfounded, finding that the lower court had properly examined the case and established that the applicant had insulted I. M. 22. On 25 March 2005 the newspaper Flux published an article describing the applicant's case. In reaction to that article, on 26 April 2005 V.B. and another regional councillor present at the meeting of 4 November 2004 wrote to the applicant's wife, explaining the reasons for the decision taken earlier rejecting help for her and her son due to the lack of information. They added that the applicant had not insulted anyone during that meeting. 23. The applicant asked for the reopening of the proceedings in view of his absence from the hearing of 16 February 2005, but the request was refused on 25 May 2005. A further request to the Prosecutor General's office to initiate the reopening of the proceedings was also refused on 30 May 2005. 24. In parallel to the above events, on 28 December 2004 I. M. asked the police to initiate criminal proceedings against the applicant for forging documents confirming his family's residence in Palanca. The investigation was discontinued on 8 April 2005 because the applicant and his family had their true residence in Palanca. On 22 April 2005 the prosecutor's office initiated court proceedings aimed at deleting the applicant's family's registration as residents of Palanca. On 9 June 2005 the Prosecutor General's office withdrew that court action. 25. The applicant contends that he was detained for five days, together with three other persons, in a cell measuring approximately 12 square metres. The cell was in the basement of the police station and was damp and dark, the window being covered by a metal sheet with holes in it. There was a wooden platform in the cell, approximately 1.8 metres wide, which was used as a bed by all four detainees. No bed linen was provided and all the detainees had to sleep in their clothes. Heating was very limited and it was cold in the cell. All the other detainees smoked, exposing the applicant to passive smoking. Food was served three times a day and two of the meals were limited to a pot of tea and a slice of bread. There was no toilet or running water in the cell. Detainees were escorted to the toilet twice a day for 3-5 minutes each, which was insufficient for their needs. They therefore had to urinate into plastic bottles in between their visits to the toilet, in plain view of the other detainees. There was no hot water and the applicant could not take a bath during his detention. 26. On 27 January 2005 the applicant's wife and daughter wanted to visit him, but this was refused because of the short term of the applicant's detention. His request to meet his family was also rejected because he was “without exit”, as noted also on the minutes of the personal search to which he was subjected upon being placed in detention. 27. On 29 January 2005 the applicant asked permission to visit a church in order to attend religious services after his mother's death on 24 January 2005. This request was refused since he had not yet served all five days of detention. The applicant did not leave the cell during the whole five days, except for the short visits to the toilet. Since his glasses were taken away upon placement in the detention cell, he could not read newspapers and there was no radio or TV in the cell. 28. The relevant provisions of the Code of Administrative Offences read as follows: Administrative detention shall be applied only in exceptional cases for certain categories of administrative offences for a period of up to thirty days. Administrative detention shall be applied by the court...” Insult, i.e. an intentional attack on a person's honour and dignity by act, orally or in writing, shall be punished by 7-15 times the conventional unit or by administrative detention of up to fifteen days...” 29. The Government submitted examples of domestic courts' case-law awarding compensation to persons who had been detained in inhuman conditions of detention. The courts relied on Article 1422 of the Civil Code. The cases included the case of T. Ciorap v. The Ministry of Finances, Ministry of Internal Affairs and Prosecutor General's Office (nr. 2a-1529/07) and the case of V. Drugalev (cited in Holomiov v. Moldova, no. 30649/05, § 88, 7 November 2006). 30. In its report concerning its visit to Moldova on 1424 September 2007 the CPT found, inter alia, the following (unofficial translation from original French): “4. Conditions of detention ... b. cells at local police stations 40. The cells seen by the delegation at the local police stations visited were not suitable for holding persons for more than a few hours. They were dark, unventilated, unheated, dilapidated and dirty, and were equipped at best with a bench. In addition to cells, local police stations had a barred enclosure, referred to as a “waiting room”, which usually measured some 5 to 6 sq.m and was devoid of any equipment. According to police staff, the cells were being used for periods of detention not exceeding 3 hours. However, the delegation received many allegations – and found documentary evidence in the custody records – that persons had in fact frequently been held overnight, on occasion for up to 5 days .... Further, it became apparent that administrative detainees had spent up to 10 days in cells at local police stations. The persons concerned had not been provided with mattresses or blankets, and had not been offered anything to eat (the only food available was that brought by detainees' families). The current situation is totally unacceptable. The CPT calls upon the Moldovan authorities to take effective steps to ensure that nobody is kept overnight at local police stations. Immediate steps should also be taken to equip all cells and “waiting rooms” with a means of rest (e.g. a bench). Furthermore, all persons detained in local police stations, irrespective of their legal status, should be offered food at normal mealtimes.” 31. The Government's response to paragraph 40 of the CPT report 2007 included the following statement (unofficial translation from original French): “Despite the measures taken in the field of creating decent conditions of detention, in view of the insufficient funding, in certain IDPs the situation remains complicated. Following verifications made during the first eight months of 2008, the Ministry of Internal Affairs ordered, due to derogations from the legislation in force, the closing down of the IDPs in police stations of ..., Ştefan-Vodă, ...”.