CASE OF MALAI v. MOLDOVA
Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture)
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1963 and lives in Chişinău. On 28 November 2004 he was charged with unlawful fishing and misappropriation of seventy-three kilograms of fish. 6. On 21 December 2004 the Orhei District Court, in a closed sitting, heard an application to remand the applicant in custody, which it granted. The reasons for remanding him in custody relied upon by the court were that he had changed his address and that he might re-offend. Neither the applicant nor his lawyer was present at the hearing and they found out about the detention order only one year later, when the applicant was arrested. 7. On 22 December 2005 at approximately 6 p.m. the applicant was arrested at his home in Chişinău and taken to the Orhei District Court where an investigating judge saw him and confirmed the detention warrant of 21 December 2004. He was then taken to the Orhei detention centre. 8. According to the applicant, he was kept in a small cell called the “aquarium” until approximately 10 p.m. the next day, when he was moved to cell no. 9. The “aquarium” was approximately two metres long and 0.80 metres wide and did not have a bed, chair, toilet or sink. It was intended for periods of detention not longer than three hours. Cell no. 9 was located below floor level and did not have windows. There was no ventilation. The electric light was always on, although it was so weak that it was difficult to distinguish the faces of the co-detainees. The cell was approximately seven metres long and three metres wide and there were six detainees in it. The cell was not equipped with a toilet but instead had a big bucket in a corner which was not separated from the rest of the cell. There was no sink and the detainees had to keep water in plastic bottles which they were allowed to refill once in a while outside the cell. There were no beds, but only a brick shelf a little higher than the floor on which four people could sleep. The cell was not provided with any bedding and the applicant alleged that he was only able to sleep for one hour per day. The cell was infested with insects, with the result that the applicant was covered with painful bites, some of which later became wounds. The applicant sent the Court photographs showing the bites on his body. The food was insufficient and of very poor quality. The detainees were fed only once a day from dirty plates and the applicant was permanently hungry. His relatives were not allowed to bring him food because he would not confess to the charges against him. The applicant was unable to have any contact with his relatives and the outside world. He did not have any paper, pen or envelopes. The room was not provided with a radio or television and due to the lack of natural light the applicant never knew what time of day it was. 9. On 4 January 2006 the applicant’s wife hired a lawyer and learned about the detention warrant of 21 December 2004. On 5 January 2006 the applicant’s lawyer challenged the detention order before the Chişinău Court of Appeal. He complained, inter alia, under Article 3 of the Convention, of the inhuman and degrading conditions of the applicant’s detention. After giving a detailed description of the conditions in which the applicant was being detained, he asked the court to find that the applicant’s rights guaranteed by Article 3 of the Convention had been breached and to award him compensation. 10. On 13 January 2006 the applicant’s lawyer repeated the habeas corpus request and the complaint under Article 3 of the Convention before the Chişinău Court of Appeal. The above complaints have never been examined by the Chişinău Court of Appeal. 11. In the meantime the applicant complained on several occasions to the prison authorities and to the sanitation department about the poor conditions of detention. However, his complaints were unsuccessful. 12. On 12 January 2006 the applicant’s lawyer complained to the Orhei district prosecutor about the applicant’s poor conditions of detention. As a result of that complaint the prison authorities moved the applicant to another cell without disinfecting it and reported to the prosecutor that the problem had been remedied. According to the applicant, the only shower in the prison was fixed then. 13. On 20 January 2006 the detention warrant expired and the applicant was released. 14. The criminal proceedings against the applicant ended with the judgment of the Chişinău Court of Appeal of 5 October 2006, by which the applicant was ordered to pay a fine of 3,000 Moldovan lei (the equivalent of 178 euros (EUR)). 15. The relevant findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT, unofficial translation) read as follows: “B. Establishments visited ... - EDP of Chişinău Police Inspectorate (Follow-up visit) ... b. remand centres (EDPs) 53. In its report on the 1998 visit (paragraph 56), the CPT was forced to conclude that material conditions of detention in the remand centres (EDPs) visited amounted in many respects to inhuman and degrading treatment and, in addition, constituted a significant risk to the health of persons detained. While recognising that it was not possible to transform the current situation in these establishments overnight, the CPT recommended a certain number of immediate palliative measures to guarantee basic conditions of detention that respect the fundamental requirements of life and human dignity. 54. Unfortunately, during the 2001 visit, the delegation found barely any traces of such palliative measures, in fact quite the opposite. ... 55. One can only regret that in their efforts to renovate these premises - which under the current economic circumstances deserve praise - the Moldovan authorities have paid no attention to the CPT recommendations. In fact, this state of affairs strongly suggests that, setting aside economic considerations, the issue of material conditions of detention in police establishments remains influenced by an outdated concept of deprivation of liberty. 56. Turning to the other EDPs visited across Moldova, with very few exceptions the delegation observed the same types of disastrous and insalubrious material conditions. A detailed description is superfluous, since it has all been highlighted already in paragraphs 53 to 55 of the report on the 1998 visit. In Chişinău EDP, these conditions were exacerbated by serious overcrowding. At the time of the visit, there were 248 prisoners for 80 places, requiring nine persons to cram into a cell measuring 7 m² and between eleven and fourteen persons into cells of 10 to 15 m². 57. The delegation also received numerous complaints about the quantity of food in the EDPs visited. This normally comprised tea without sugar and a slice of bread in the morning, cereal porridge at lunch time and hot water in the evening. In some establishments, food was served just once a day and was confined to a piece of bread and soup. ... ...Concerning the issue of access to toilets in due time, the CPT wishes to stress that it considers that the practice according to which detainees comply with the needs of nature by using receptacles in the presence of one or several other persons, in a confined space such as the EDP cells which also serve as their living space, is in itself degrading, not only for the individual concerned but also for those forced to witness what is happening. Consequently, the CPT recommends that clear instructions be given to surveillance staff that detainees placed in cells without toilets should – if they so request – be taken out of their cell without delay during the day in order to go to the toilet. 59. The CPT also recommends that steps be taken to: - reduce the overcrowding in Chişinău EDP as rapidly as possible and to comply with the official occupancy level; - supply persons in custody with clean mattresses and clean blankets; - authorise persons detained in all EDPs to receive packages from the outset of their custody and to have access to reading matter. In the light of certain observations made, particularly in the EDP of the Chişinău Police Inspectorate, the CPT also reiterates its recommendation concerning strict compliance, in all circumstances, with the rules governing separation of adults and minors.” “4. Conditions of detention. a. Institutions of the Ministry of Internal Affairs 41. Since 1998, when it first visited Moldova, the CPT has serious concern for the conditions of detention in the institutions of the Ministry of Internal Affairs. The CPT notes that 32 out of 39 EDPs have been subjected to “cosmetic” repair and that 30 have been equipped with places for daily walks. Nevertheless, the 2004 visit did not allow lifting the concern of the Committee. In fact, most recommendations made have not been implemented. 42. Whether one refers to the police stations or EDPs visited, the material conditions are invariably subject to the same criticism as in the past. Detention cells had no access to daylight or a very limited such access; artificial light – with rare exceptions – was mediocre. Nowhere did the persons obliged to pass the night in detention receive mattresses and blankets, even those detained for prolonged periods. Those who had such items could only have obtained them from their relatives... 45. As for food ... in the EDPs the arrangements made were the same as those criticised in 2001 (see paragraph 57 of the report on that visit): generally three modest distributions of food per day including tea and a slice of bread in the morning, a bowl of cereals at noon and tea or warm water in the evening. Sometimes there was only one distribution of food per day. Fortunately, the rules for receiving parcels have been relaxed, which allowed detainees with relatives outside to slightly improve these meagre daily portions. 47. In sum, the material conditions remain problematic in the police stations; they remain disastrous in EDPs, continuing in many aspects to amount, for the detainees, to inhuman and degrading treatment.” “II. 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.” 16. According to Article 313 of the Code of Criminal Procedure, a party to criminal proceedings can contest the actions or inactions of the criminal investigator before the investigating judge.